Opposition Brief — Nordyke v. King

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No. 03-1707

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AUb 27 2004 |

Jn The © L_OFFICE OF TH CLERK |

Supreme Court of the United : States

RUSSELL ALLEN NORDYKE, et al.,

Petitioners,

MARY V. KING, ez ai.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

RICHARD WINNIE SAYRE WEAVER

County Counsel Counsel of Record

County of Alameda . ~ RICHARDS, WATSON & GERSHON

-1221 Oak Street, A PROFESSIONAL CORPORATION

Suite 463 “44 Montgomery Street,

Oakland, CA 94612 Suite 1420

(510) 272-6700 San Francisco, CA 94104

(415) 421-8484

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO) (800) 225-0904

OR CALL COLLECT (402) S42-28351

QUESTIONS PRESENTED

1. Should this Court reverse its precedents holding

that the Second Amendment constrains only the actions of

Congress, in the context of an order of the United States

Court of Appeals for the Ninth Circuit affirming denial of

a preliminary injunction, where that order does not

conflict with these precedents or with the decisions of any

other United States court of appeals on the same federal

question? —

2. Should this Court reverse its decisions on the

scope of the right protected by the Second Amendment in

the context of a challenge to a legislative decision by a

County, a legal subdivision of the State of California, to

prohibit possession of firearms on certain property it owns

such as parks, historic sites and the fairgrounds?

3. Does a County ordinance prohibiting possession of

firearms on County-owned property, including its fair-

grounds, on its face, abridge First Amendment rights of

trade show operators who choose not to patronize that

venue after enactment of that ordinance?

LIST OF PARTIES

Petitioners: -

Russell Allen Nordyke and Sallie Ann Nordyke,

dba TS Trade Shows.’

Respondents:

Mary V. King, Gail Steele, Wilma Chan, Keith

Carson, Scott Haggerty,

’ The plaintiffs in the original complaint were Russell Allen

Nordyke and Sallie Ann Nordyke, dba TS Trade Shows (“Nordykes”).

Excerpts of Record (“R”), Tab (“T”) 1, page 1. Seven days after the trial

ccurt issued the order denying the preliminary injunction, the Nor-

dykes amended their complaint, adding allegations and new plaintiffs.

R, T16. On appeal, Petitioners “bootstrapped” the amended complaint

into the appeal by captioning the appellate pleadings with the caption

from the amended complaint and citing to the amended complaint. R,

Tl at 1; T16 at 1. Respondents moved the Ninth Circuit Court of

Appeals to strike the additional plaintiffs who were not parties to the

action when the District Court entered the order appealed from, and

also moved to strike references to the amended complaint. Respondents’

Appendix (“Resp. App.”) 9. The Ninth Circuit never ruled on that

motion and never addressed the issue. However, in its opinion affirming

the order denying the preliminary injunction, the Ninth Circuit refers

only to the Nordykes. Pet. App. 1. In the proceedings before the

California Supreme Court on the question certified by the Ninth

Circuit, the County also moved to strike the same matter. Resp. App.

14. That Court also never ruled on the motion. In the opinion, the

California Supreme Court refers to the exhibitors and patrons as “the

remaining plaintiffs” (Pet. App. 84) but appears to treat the Nordykes

as the only parties to the interlocutory appeal. Pet. App. 83, 84, 85.

Accordingly, it is Respondents’ position that none of the persons or

entities captioned by Petitioners as Petitioners except the Nordykes

themselves are proper parties to any of the proceedings pertaining to

appeal from the order denying the preliminary injunction, including

this Petition, and that this Court has jurisdiction only over the Nor-

dykes.

ill

LIST OF PARTIES - Continued

The County of Alameda, and the County of Ala-

meda Board of Supervisors.”

2 Petitioners named in the original complaint The County of

Alameda and the Alameda County Board of Supervisors and its

individual Board Members, Mary V. King, Gail Steele, Wilma Chan,

Keith Carson, Scott Haggerty, in their personal as well as official

capacities. Respondents have consistently taken the position that there

is no basis for the Board of Supervisors or its members to be personally

named because they are absolutely immune from personal liability for

their legislative acts and are also protected by the doctrine of qualified

immunity. Respondents preserved these objections by filing with the

District Court on October 7, 1999, a Notice of Motion and Motion by

Defendants to Dismiss the Verified Complaint for Damages, Injunction

and Declaratory Judgment, or In the Alternative to Abstain; Memoran-

dum of Points and Authorities in Support Thereof. The hearing on this

motion is stayed pending the underlying appeal. Accordingly, without

waiving the objections set forth in the motion, this Brief in Opposition

refers to Mary V. King, Gail Steele, Wilma Chan, Keith Carson, Scott

Haggerty, The County of Alameda, and the County of Alameda Board of

Supervisors collectively as “Respondents.”

TABLE OF CONTENTS

STATEMENT OF THE CASE. .......::sccscccscetsesrersereesenesers

ARGUMENT: REASONS WHY THE PETITION FOR

CERTIORARI SHOULD NOT BE GRANTED.........

SRST OT PCIE on csicssscessssecenicsseccovtbiocecanscsevesss

(1)

(2)

(4)

(5)

On The Threshold Question Of Incorporation

Of The Second Amendment, The Decision Be-

low Is Consistent With The Holdings Of This

Court And Sister Circuit Courts, And Thus

There Is No Rule 10 Ground And No Other

Compelling Reason For Certiorari Review On

ERE BI SI eines inicencccccacenceinacecenecens

Even If It Were “Incorporated,” The Second

Amendment Protects Only Conduct That

Bears Some Reasonable Relationship To The

Well Regulated Militia; And Petitioners Fail To

Show That The Ordinance Infringes Such Pro-

I I iets entice

Under Any Interpretation Of The Second

Amendment, Petitioners Have Established No

Standing To Assert That Right...................

Even If Petitioners Could Establish Standing

To Assert An Individual Right To Bear Arms,

Under Any Interpretation Of The Second

Amendment The Challenged Ordinance Is

Reasonable And Thus Constitutional................

Petitioners’ Failure To Convince The Trial

Court Or The Three-Judge Ninth Circuit Panel

That The Ordinance Implicates The First

Amendment Does Not Support Summary Re-

I conics ch cacseviatin serinincdadacir teas

TABLE OF AUTHORITIES

CASES

Arnold v. City of Cleveland, 67 Ohio St.3d 35, 616

WN EB..24 168 (1008) «00: ssccccscvessecersccnscpessccnsseccevagneeseneeres

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct.

DAGG. (1992) ..0.sccceccccevessessesevesconssesssnenesauievaplenstesaesensens

Birkenfeld v. City of Berkeley, 17 Cal.3d 129, 130

Cal. Rptr. 465 (Cal. 1976).......:sscccsssesseseeetereeeseeeneees

Board of Airport Commissioners v. Jews for Jesus,

482 U.S. 569, 107 S.Ct. 2568 (1987)........cceeeeereerees

Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908

(DIB) vcvcccevesscscosoncvecerssateccesemiveoounstarenstenenneenerpiaamte

Burton v. Sills, 394 U.S. 812, 89 S.Ct. 1486 (1969)....13, 14

City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir.

TODAY ncccctessssnissoverseeresrendeciransenmersincensyeetirne manenanas 27

Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636

(19D7) ....ccccsoccsrosscsssorecsssssessnsossusnroesepeeensensnssesnasessavennestens 13

Edwards v. Goldsboro, 178 F.3d 231 (4th Cir. 1999)........ 29

Elk Grove Unified School District v. Newdow, ___

U.S. __, 124 S.Ct. 2301 (2004) ....... eee eeeeeeeeeeeenereeeeeey 21

Great Western Shows, Inc. v. County of Los Angeles,

97 Cal.4th 853, 118 Cal.Rptr.2d 746 (Cal. 2002) ........ 4,9

Heffron v. Int'l Soc’y for Krishna Consciousness,

Inc., 452 U.S. 640, 101 S.Ct. 2559 (1981)............ 8, 25, 26

Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert.

denied, 519 U.S. 912, 17 S.Ct. 276 (1996)............00+ 6,15

TABLE OF AUTHORITIES - Continued

Page

Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct.

SESS CEI) visssvtsstorssacctetecaaea 29

J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred

International, Inc. 5384 U.S. 124, 122 S.Ct. 593

(2001)....0+06, se eibessivedinou quededeesatesneeaaalaaiiniiaesiiia saan nana nna 20

Lakewood v. Plain Dealer Publishing Co., 486 U.S.

760, 106 B.C, FES Caiitetsctitcvsateinreedacniaaecan 24

Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009 (1947)........ |

Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915

(FOB GD siccisisccccistotectevenseniesoeene 12, 14

Marbury v. Madison, 5 U.S. 187, 1 Cranch 137

(ROBB) .iivssvscscecccecesscasuukianccccsuiesmeaeasiceneaenean 20

Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886 (1988)....... 28

Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d

FOE CCL, Fee iv exietsrsscsscineetaeeeanaeee en 4,9

Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003).................. 9

Nordyke v. Santa Clara County, 110 F. 3d 707 (9th

Car, BGT) ovsecsncvarenssveeieennevedieeseunine aie ines 26

One World One Family Now v. City and County of

Honolulu, 76 F.3d 1009 (9th Cir. 1996), cert.

denied, 519 U.S. 1009, 117 S.Ct. 554 (1996)..... 24, 25, 27

Perry Educ. Ass’n v. Perry Local Educators, 460

U.S. 37, 106 S.CR. BOG Tee cctiicvictseccnennn 28, 29

Planned Parenthood of S.E. Pennsylvania v. Casey,

505 U.S. 833, 112 S.Ct.-2791 (1992)............ssesceseoees 11, 14

Presser v. Illinois, 116 U.S. 252, 29 L.Ed. 615, 6

CR. GEC TBD viscecsessissiiccincanccectsscccranaeiuecaeeaaaeee 11

Vii

TABLE OF AUTHORITIES -— Continued

Page

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th

Cir. 1982), cert. denied, 464 U.S. 863, 104 S.Ct.

194 (1983) ........ccccccccscscccccsssssssssssreeeesesseseresosssecerenseeeesons 22

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.

2002), cert. denied, __ U.S. __, 124 S.Ct. 803

(BODE) .cnccccecsresevengsesvseccensancoscncesnersssssvasenoesnses 10, 15, 17, 19

Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533

(1989) .....ccccccccsscssccscsssccscescesseesseessesssssssenscensesnsesesansonnes 23

United States v. Bean, 537 U.S. 71, 123 S.Ct. 584

(DOOD) .....cecccecscesecessccscsscsseseeeesssessesssessresenseensesssansessrecess 13

United States v. Cruikshank, 92 U.S. 542, 23 L.Ed.

BBS (1875) .......cscccccsssscccsssscccesseeresessnsesessrseseesnaceseseasossners 11

United States v. Emerson, 270 F.3d 203 (5th Cir.

2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362

(DOOD) ....cccesevccsceesceserssesccrorssssessrsvasoosssesereseseres 9, 19, 20, 22

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624

(1995) ....ccccccccccscssscsssssssccssrssescesscsescssssnscensennsscosenssensecess 13

United States v. Miller, 307 U.S. 174, 59 S.Ct. 816

(1939) ............cccssscsccssssssrsscceesesseeeserscennesessssavesosenseees passim

United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999

(1941) .....ccscccssccssscssscssseseseesesesessossssnssenscsnsssnesscsens seven 27

United States v. O’Brien, 391 U.S. 367, 88 S.Ct.

1673 (1968) .........ccsccccccsssssssreeeeesssseeeestereeeeseseeeeesens 7, 8, 23

Virginia Military Inst. v. United States, 508 U.S.

946, 113 S.Ct. 2431 (1993)... cscerereererrensetetretsetsenetnees 11

Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct.

DQ5B (1997) ......cccssccsssscccessssseeeeesneesesseseenssesensnneseeseeeesees 12

vill

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION, STATUTES & LEGISLATIVE MATERIALS

CALIFORNIA CONSTITUTION art. 11, § 7 ........ccssssscccceeeseeseeeees 3

U.S, FUTONS Cte THBIO 1G... .0ccccccsvecececsescscovicseccenses 10, 11

Code of Federal Regulations, Title 27, Chapter 1,

Subchapter M, Part 178, Section 178.100(b)(1)(B)....... 21

California Government Code:

II viCoeuscanaicisesdisswiasinhsudevsiadatuatoctopeiiaaaantaunaan 3

a a 4,9

California Health and Safety Code:

| a ee ssnraseinieausleronas ae

SPITE ANI ci-ssuiscustilaindndunsetdauiceseciustbabtessiacdeaem common 2

NE OUD scrieenscensonvincunssecenivuinbadetbiasenianiacatiainbatanscebe 2

IIIT \dshasncnkveduavianiacdavedsucdcnssseamranaesaadeecanauibcin 2

| ee ssp ale 2

I IID iis sac cusconcencuvesetkersnceideonontiivessdenennccsuedeateead 2

Calilfornia Penal Code:

RINNE He icticscccnsievcsucintvécclednsbinecineoseriuecmbaibanenasmens 3

I Fare Rt NEE sivattetanscstancsinssieraviicstmmnee 21

ALAMEDA COUNTY, CA, GEN. ORD. CODE, Ch. 9.12,

ESL MPD IIET ntdvciurcicouededcnsewdanetindacehsiancensiaseendusanasnaained passim

OTHER AUTHORITIES

Car] T. Bogus, The Hidden History of the Second

Amendment, 31 U.C. DAvis L. REv. 309, 376

i E his kcivinecécsinncnncel diauidiiaebes mamaicemmmminadinccu tan 17

TABLE OF AUTHORITIES — Continued

Carl T. Bogus, The History and Politics of Second

Amendment Scholarship: A Primer, 76 CHI.-KENT

L. REV. 3, 8-10 (2000)..........:cesceeeesesnreeeesereeeseeeeneeees

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Founding Fathers and Adoption of the Federal

Bill of Rights, 8 J. EARLY REPUBLIC 223 (1988) .....

Saul Cornell, Commonplace or Anachronism: The

Standard Model, The Second Amendment, and

the Problem of History in Contemporary Consti-

tutional Theory, 16 CONST. COMMENTARY 221

(1999) ........ccccoccerscssrssccsesscssererseeressersssoccrssensosenseosens

Saul Cornell, “Don’t Know Much About Hi.story”

The Current Crisis in Second Amenc'ment

Scholarship, 29 N. Ky. L. REv. 657, 677 (2002).....

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Origins and Meaning of the Right to Bear Arms,

71 J. AM. HIST. 22 (1984).......::cceecceeeeeeseereeeeeeeesenees

DELUXE BLACK’S LAW DICTIONARY 109 (6th ed. 1990)

Tom Diaz, Making a Killing: The Business of Guns

in Americar 49 (1999) ......:cccccceeeeeeseeeeeeneeeeseeeeeeeeenees

Don Higginbotham, The Federalized Militia Debate:

A Neglected Aspect of Second Amendment Scholar-

ship, 55 WM & Mary Q. 39, 40 (1998) .......... Ciesuiets

Sanford Levinson, “The Embarrassing Second Amend-

ment,” 99 YALE LJ. 637 (1989)......:ccccceereeereeererens

Sanford Levinson, THE HISTORIANS’ COUNTERATTACK:

SOME REFLECTIONS ON THE HISTORIOGRAPHY OF

THE SECOND AMENDMENT, GUNS, CRIME AND

PUNISHMENT IN AMERICA 93 (Harcourt ed. 2003)...

TABLE OF AUTHORITIES — Continued

Page

Matthew S. Nosanchuk, The Embarrassing Interpre-

tation of the Second Amendment, 29 N. Ky. L.

Be Mg Fe SI cps nenesak addins vabevinasstueoniccessusaeeeemien

John E. Nowak and Ronald D. Rotunda, CONSTITU-

TIONAL LAW 332-334 (4th ed. 1991) 0... eee eecee ees

Jack N. Rakove, The Second Amendment: The

Highest Stage of Originalism, 76 CHI.-KENT L.

I RIE LE Reel ep RR DON Oe OER PO PT

Robert E. Shalhope, Jo Keep and Bear Arms in the

Early Republic, 16 CONST. COMMENTARY 269,

Be IE oicivvivedocsvisisebierseavaniseneonieuteuntetanennsinties

Garry Wills, A NECESSARY EVIL: A HISTORY OF

AMERICAN DISTRUST OF GOVERNMENT (1999)................

David Yassky, The Second Amendment: Structure,

History, and Constitutional Change, 99 MIcu. L.

LARSEN TOL” PRE ES OD NEE OPO

STATEMENT OF THE CASE >

After a failed attempt to obtain reversal of an order

denying a preliminary injunction, Russell Aller © ordyke

and Sallie Ann Nordyke dba TS Trade Shows’ , Petition-

ers”) invite this Court to revisit its holdings on the incor-

poration doctrine, the Second Amendment, and separation

of powers, in the context of their facial challenge to a

County ordinance prohibiting firearms possession on one

limited category of County-owned property. ALAMEDA

County, CA GEN. ORD. CODE, Ch. 9.12, § 9.12.120. subd.

nance regulates venues owned by the County of Alameda,

such as parks, historic sites, and the fairgrounds, and was

enacted after a mass shooting at one of the regulated

venues. Pet. App. 94-96.”

Petitioners’ Statement of the Case contains numerous

misstatements of the facts and the law that are corrected

below. However, the Statement also obfuscates three

essential facts that merit this Court’s immediate consid-

eration. First, Petitioners’ Second Amendment claim —

which Petitioners never pleaded and never presented to

the trial court at all — is presented to this Court in a

factual vacuum, and was so presented to the Ninth Circuit

Court of Appeals. As discussed below, this Court has a long

and considered practice not to decide any constitutional

question except with reference to the particular facts to

which it is to be applied. The Court would be required to

relinquish that practice here. The Petition, Judge Gould’s

separate concurrence, and the opinions dissenting from

denial of rehearing en banc, are all devoid of analysis

regarding why or how judicial recognition of an “individual

right to bear arms” would have any bearing on this trade

' See List of Parties, n.1, supra.

2 The Ordinance also prohibits possession of ammunition on

County-owned property. Pet. App. 94-95. However, that aspect of the

Ordinance has not been a subject of Petitioners’ challenge.

show operator’s facial challenge to a garden variety

prohibition of firearms on certain publicly-owned property.

Second, as noted above, the challenged Ordinance

regulates only a limited category of the County’s own

property. It does not regulate throughout the unincorpo-

rated territory, a misimpression Petitioners have success-

fully conveyed to a number of the judges dissenting from

denial of rehearing en banc.’ The Ordinance applies only

to property owned by the County, and excepts local public

buildings. Thus, the property regulated consists princi-

pally of open space venues, such as county-owned parks,

recreation areas and historic sites, and the County fair-

grounds. Pet. App. 94-96.

Third, as set forth on the face of the Ordinance, it was

enacted to promote the public health and safety after

a mass shooting on the County-owned fairgrounds

and in response to the high number of gun-related homi-

cides and injuries in the County, all detailed in the findings.

Pet. App. 94. The Petition attempts to obscure these legisla-

tive findings, referencing them only as “findings about the

abstract evils flowing from guns.” Petition (“Pet.”) 27.

In short, by obfuscating where and why the Ordinance

prohibits firearms possession, Petitioners have succeeded

in sparking an academic discussion by a few Ninth Circuit

* Some justices dissenting from denial of the petition for rehearing

en banc apparently understood the Ordinance to apply throughout the

unincorporated territory. See Nordyke v. King, 364 F.3d 1025, 1026, (9th

Cir. 2004); Pet. App. 24, 26. However, the Ordinance applies only-to

property the County owns in fee or leases, wherever located; it does not

apply generally to the unincorporated territory, most of which is owned

or leased by private parties or public entities other than the County,

and it does not apply to local public buildings owned or leased by the

County. Pet. App. 94-96. The County owns no housing, therefore the

Ordinance also does not apply to any residential property. By statute,

the existence of a separate corporate body, the Housing Authority of the

County of Alameda, precludes ownership of public housing by Alameda

County. See Cal. Health and Safety Code §§ 34240, 34201(c), 344( J(d),

34315(b), (e), (f). at Resp. App. 1-5.

judges who are anxious to debate the nature of the right

protected by the Second Amendment. Petitioners now

invite the Court to join in that debate but fail to show this

Court why it is necessary to adjudicate that issue here.

More specifically, the actual facts of the case are as

follows. Petitioners seek review from the order of the

Ninth Cireuit Court of Appeals affirming the denial of

their motion for a preliminary injunction. Their underly-

ing challenge is one to the facial validity of the Ordinance,

which prohibits firearms possession on property owned or

leased by the County. Pet. App. 94-96. Subject to certain

exceptions, state law prohibits firearms possession in

“local public buildings.” See Cal. Pen. Code § 171b; Resp.

App. 5-8. State law does not prohibit firearms possession

on other County-owned property. Jd. The Ordinance

excepts local public buildings. Pet. App. 94-96. As a result,

the principal venues subject to the Ordinance are open

space venues, where crowds may gather, and where it is

difficult to supervise access and activities.

Although the County exercises general police powers

throughout the unincorporated territory,’ most of which is

owned or leased by private and public owners other than

the County, the State has specifically charged the County

with the duty of managing the County’s own property in

‘ Under California Government Code Section 23002, the County is

a legal subdivision of the State. See Cal. Gov. Code § 23002 (“The

several existing counties of the State and such other counties as are

hereafter organized are legal subdivisions of the State.”). Under the

California Constitution, its police powers are as broad as those of the

State except regarding those subjects over which the State has chosen

to assert exclusive authority. See CAL. CONST. art. 11, § 7 (“A county or

city may make and enforce within its limits all local, police, sanitary,

and other ordinances and regulations not in conflict with general

laws.”); see also Birkenfeld v. City of Berkeley, 17 Cal.3d 129, 140, 130

Cal.Rptr. 465 (Cal. 1976).

the interests of its inhabitants. Cal. Gov. Code § 23004(d).°

In the proceedings in this case, the California Supreme

Court has held that under Cal. Gov. Code section 23004(d)

“a county is given substantial authority to manage its

property, including the most fundamental decision as to

how that property will be used... .” Nordyke v. King, 27

Cal.4th 875, 882, 118 Cal.Rptr.2d 761 (Cal. 2002) (citing to

Great Western Shows, Inc. v. County of Los Angeles, 27

Cal.4th 853, 118 Cal.Rptr.2d 746 (Cal. 2002)); Pet. App. 86.

The Ordinance was enacted after a multiple shooting

on the County-owned fairgrounds, during the County fair.

Twelve people, most under the age of 21 and the youngest

of whom was 8 years old, were injured in this incident.

Excerpts of Record (“R”), Tab (“T”) 9, 2, J 4. Emergency

response teams, medical helicopters, and 157 law enforce-

ment officers responded to the incident. R, T9, 3, | 5. The

alleged perpetrator was arrested.in possession of a semi-

automatic handgun and an extra ammunition clip and was

charged. R, T9, 3, 1 6. The incident gave rise to nineteen

tort claims, eleven of which could not be resolved and

culminated in eleven liability lawsuits against the County.

R, T13, 13-74. This incident, the high level of gun homicides

and injuries in the County, and the fact that firearms rank

as the leading cause of death for young people ages 15

through 24 in Alameda County, were among the findings

made by the County Board of Supervisors in adopting the

Ordinance. Ordinance, subd. (A); Pet. App. 94.

The Ordinance contains a few exceptions, including

for persons such as peace officers, concealed carry permit

holders, persons lawfuily using the County target range,

and participants in film, dance, theatre productions or

events when the participant uses the firearm as part of

the production or event and the firearm is secured when

* Gov. Code Section 23004(d) provides that a county may

“[mjanage, sell, lease, or otherwise dispose of its property as the

interest of its inhabitants require.”

not in the actual possession of that person. Ordinance,

subd. (F); Pet. App. 95-96. The foregoing exception allows

firearms possession on County-owned property for events

in which that possession can be readily supervised and the

firearm is secured when not in the participant’s actual

possession. Ordinance, subd. (F)(4); Pet. App. 95-96. Some

activities the Nordykes allege occur at their trade shows,

such as historical reenactments and other firearms-related

presentations, are consistent with this exception.”

The Alameda County Fair Association (“Fair Associa-

tion”), a separate non-profit corporation, manages the

fairgrounds, and is required to operate the fairgrounds in

compliance with all federal, state and local laws. R, T1, 6,

J 22; R, T1, 35-37. In the past, Petitioners contracted with

the Fair Association to use a part of the fairgrounds for

their trade shows, generally for up to five events a year, on

an event-by-event basis. R, Tl, 7, q{ 27-28. Petitioners

then subleased spaces at their trade show events to

various different types of vendors, collectors, and the like.

R, T1, 8, J 29. A large variety of items are offered for sale

at their trade shows, including firearms. R, T1, 3, q 10.

After the Ordinance was adopted, the Fair Association

sent Petitioners a letter asking them to provide informa-

tion as to how they intended to conduct their trade shows

in compliance with the Ordinance. R, T1, 3, { 33; R, TI,

36-37. Petitioners did t respond to the letter. They then

® Petitioners cite to nothing in the record that would compel the

conclusion that there are no circumstances in which this exception

could be constitutionally applied. Nevertheless, they mischaracterize

the exception as content-based. Pet. 30. What is plain from the record is

that Petitioners are not concerned with whether certain activities that

occur in conjunction with their trade show could take place at the

fairgrounds consistent with the Ordinance. Instead, what they allege is

that because the Ordinance will discourage their firearms vendors from

participating in their trade show if it is held at the fairgrounds, it will

become unprofitable for them to hold the trade show at the fairgrounds,

and as a result, other activities that occur in conjunction with their

trade show will also not take place. R, T1, 11, q 37, T1, 17-19, J 59.

filed their original complaint challenging the Ordinance

and moved for injunctive relief on their First Amendment

and state law preemption claims. R, T1; R, T7. Their

original complaint did not plead a Second Amendment

claim and they did not brief that claim in connection with

their motion seeking injunctive relief.’

The District Court denied the motion, inaitadins that

Petitioners had failed to demonstrate a likelihood of

success on the merits of the claims pleaded. Pet. App. 46,

72. In examining their state law preemption claim, the

District Court considered whether the Ordinance seeks to

regulate any matter preempted by any law of general

application. The District Court concluded that the Second

Amendment afforded them no protection because under

controlling law, the Second Amendment only constrains

the federal government, not states or local governments.

Pet. App. 62. The District Court further noted that while

Petitioners had not alleged a Second Amendment claim,

they lacked standing to assert such a claim. Pet. App. 63

(citing Hickman v. Block, 81 F.3d 98, 100-01 (9th Cir.

1996), cert. denied, 519 U.S. 912, 117 S.Ct. 276 (1996)).

The District Court went on to find that Petitioners had

demonstrated no likelihood of success on the merits of

their state law preemption claims. Pet. App. 63-72.

Additionally, the District Court found that Petitioners

demonstrated no likelihood of success on the merits with

respect to their First Amendment Claims:

“In contrast to expressive conduct one would uni-

formly associate with the act of burning our Na-

tion’s flag or even a _ selective service card,

possession of a firearm is not an act sufficiently

communicative in and of itself to carry a plainly

representative or symbolic significance. The record

” As noted above and below, Petitioners filed an amended com-

plaint after the court entered its order denying their injunction. The

amended complaint also pleaded no Second Amendment claim. Resp.

App. 9, 14.

before the court is bereft of any use of the gun that

was intended, in and of itself, to convey a message.

Indeed, plaintiffs rely on legal conclusions that the

possession of the gun is expressive conduct.

Plaintiffs’ Br. at 4.”

Pet. App. 52.

The District Court further held that Petitioners’

argument that firearms possession should be treated as

protected speech “would stretch the scope of speech beyond

its constitutional realm, and lacks a principled basis for

distinction from the possession of any regulated commod-

ity or object as a ‘statement’ regarding the propriety of

such regulation.” Pet. App. 53. Even assuming Petitioners

could overcome the initial hurdle of establishing that

possession of weapons implicates speech, the trial court

concluded the public safety concerns addressed by the

Ordinance on its face, without regard to suppression of

speech, are “so central to the exercise of local authorities’

police power that a triggering incident, such as the 1998

shooting, was not a necessary constitutional predicate to

its enactment, but instead only strengthens the conclusion

that such a measure furthers a substantial and important

interest.” Pet. App. 55, n.7.

The District Court also concluded that the Ordinance

met all four elements of the test-established in United

States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968) and

that Petitioners’ argument that the court should look

beyond the face of the Ordinance because of comments by

one of the members of the Board of Supervisors’ was

identical to an argument rejected by the O’Brien C_ art:

“Here, the prohibited conduct is readily severable

from the exercise of speech regarding guns. In

other words, this ordinance has a distinct public

® These are the same alleged statements by Supervisor King that

are referred to in the Petition.

health and safety interest ‘unrelated to the sup-

pression of expression.’ [quoting O’Brien]. [J] The

second problem with the argument is that it asks

the Court to strike down the statute based on an

improper legislative purpose. In U.S. v. O’Brien,

the Court rejected the precise line of argument

where, as here, the ordinance itself passes consti-

tutional muster. See U.S. v. O’Brien, 391 U.S. at

383. The Court explained that the Court ‘will not

strike down an otherwise constitutional statute

on the basis of an alleged illicit legislative mo-

tive.’ Id. The Court called this a ‘fundamental

principal of constitutional adjudication.’ Jd.

Plaintiffs have not presented any reason to set

aside such a clear rule.”

Pet. App. 56.

The District Court also rejected Petitioners’ commer-

cial speech challenge, finding that the Ordinance does not

prohibit speech associated with the buying or selling of

guns or affect any part of the actual speech associated

with the offer for sale or such sale.’ Pet. App. 60.

Petitioners then filed an interlocutory appeal in the

Court of Appeals for the Ninth Circuit.” They did not brief

or argue the Second Amendment in their opening or reply

briefs in the Ninth Circuit. After briefing and argument,

the Ninth Circuit certified the state law preemption claim

to the California Supreme Court on its own motion, asking

the question: “Does state law regulating the possession of

* The District Court also concluded that even if arguendo the

Ordinance incidentally impacts speech, it is a valid time, place or

manner regulation, citing to Heffron v. Int'l Soc’y for Krishna Con-

sciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559 (1981) and relying on that

precedent in concluding that a fairgrounds is a different type of public

forum from a public street. Pet. App. 58. In particular, the District

Court noted that, as in Heffron, the regulation of fairgrounds poses

special concerns related to crowd control. Pet. App. 58.

° See List of Parties, n.1, supra.

firearms and gun shows preempt a municipal ordinance

prohibiting gun possession on county property?” Pet. App. 76.

The California Supreme Court granted certification.

See Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761

(Cal. 2002). Referring back to Great Western Shows, Inc. v.

County of Los Angeles, 27 Cal.4th 853, 118 Cal.Rptr.2d 746

(Cal. 2002), the companion case also before it on certifica-

tion from the Ninth Circuit, the California Supreme Court

noted that it had there concluded that under California

Government Code Section 23004(d) a county has substan-

tial authority to manage its property, including the most

fundamental decision as to how that property will be used,

and that nothing in state law governing gun shows evinces

an intent to override that authority. Nordyke v. King, 27

Cal.4th 875, 882, 118 Cal.Rptr.2d 761, 766 (Cal. 2002); Pet.

App. 86."

After the case was returned to the Court of Appeals

for the Ninth Circuit, Petitioners filed a motion for sup-

plemental briefing on the Second Amendment in light of

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001),

cert. denied, 536 U.S. 907, 122 S.Ct. 2362 (2002) and the

change in the United States government's position on the

scope of the Second Amendment. Respondents’ Appendix

(“Resp. App.”) 28-33. The three judge panel granted the

motion, ordering the simultaneous filing of supplemental

briefs by the parties on all constitutional issues. Resp.

App. 62.”

Subsequently, the Ninth Circuit panel affirmed the

District Court order denying the motion for a preliminary

injunction, on all claims. See Nordyke v. King, 319 F.3d

" Finding it immaterial to the existing litigation, the California

Supreme Court declined to address Petitioners’ “partial preemption”

arguments. Pet. App. 88-89.

2 Petitioners are thus not correct in stating that the panel “called

for” briefing on the Second Amendment issues, suggesting that the

panel did so sua sponte. Petition 5.

1185 (9th Cir. 2003); Pet. App. 1. Petitioners petitioned for

rehearing on the First Amendment claims and rehearing

en banc on the Second Amendment claim. Resp. App. 34,

39-40, 57-59. The Ninth Circuit stayed consideration of the

petition while the case of Silveira v. Lockyer, 312 F.3d

1052 (9th Cir.), cert. denied, ___ U.S. __, 124 S.Ct. 803

(2003) was pending before this Court. The panel later

denied the petition for rehearing and two of the judges on

the panel voted in favor of granting the petition for rehear-

ing en banc and the third judge on the panel “so recom-

mended.” The petition for rehearing en banc was denied.

See Nordyke v. King, 364 F.3d 1025 (2004); Pet. App. 22.

ARGUMENT: REASONS WHY THE PETITION

FOR CERTIORARI SHOULD NOT BE GRANTED

Summary of Argument

As shown more fully below, Petitioners cannot over-

come the first obstacle to their Second Amendment claim

because on the threshold issue of incorporation, the

decision below by the Court of Appeals for the Ninth

Circuit is consistent with this Court’s prior decisions and

those of the sister circuits, all acknowledging that the -

Second Amendment has not been incorporated against the

states by the Fourteenth Amendment. Thus, the Petition

fails to establish any ground under U.S. Supreme Court

Rule 10 for certiorari review, much less any other compel-

ling reason for that review.

Likewise, on Petitioners’ First Amendment claims, the

decision below is consistent with the holdings of this Court

and those of the sister circuits. Although Petitioners did

not even seek rehearing en banc on these claims, they urge

the extraordinary relief of summary reversal here. Resp.

App. 34, 57-59. Consistent with its precedents, this Court

should confine review to the public safety findings on the

face of the Ordinance, rather than impute improper motives

to the legislators as Petitioners urge. Thus, on the First

Amendment claims, the Petition also fails to establish any

basis for review, much less any reason for summary

reversal. Further, as shown in Respondents’ Statement of

the Case, the case before the Court is not final. This Court

generally does not grant certiorari in the absence of a final

judgment. Virginia Military Inst. v. United States, 508

U.S. 946, 113 S.Ct. 2431 (1993). Petitioners fail to explain

why this Court should grant certiorari here, where no

issue fundamental to further conduct of the case must be

addressed. Cf. Land v. Dollar, 330 U.S. 731, 734 n.2, 67

S.Ct. 1009 (1947).

(1) On The Threshold Question Of Incorporation Of

The Second Amendment, The Decision Below Is

Consistent With The Holdings Of This Court And

Sister Circuit Courts, And Thus There Is No Rule

10 Ground And No Other Compelling Reason For

Certiorari Review On That Threshold Issue

This Court follows its own precedents unless they are

found to embody clear error, or become unworkable or

doctrinally outmoded. Planned Parenthood of S.E. Penn-

sylvania v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 2808

(1992). Before addressing Petitioners’ belatedly raised

Second Amendment claim, this Court must first determine

whether it should reverse its decisions holding that the

Second Amendment constrains only federal action. United

States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875);

Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580 (1886); see also

John E. Nowak and Ronald D. Rotunda, CONSTITUTIONAL

LAW 332-334 (4th ed. 1991) (explaining that this Court has

rejected “total incorporation” and that the entire Bill of

Rights has not been incorporated). As discussed more fully

below, there has been no evolution of legal principle or

development of constitutional law that would make obso-

lete these precedents. See Casey, supra, 505 U.S. at 857.

Incorporation is the threshold issue raised by Peti-

tioners’ Second Amendment claim: Whether they have

standing to raise a Second Amendment claim, and what ~*

right is protected by the Amendment are questions that

need not be answered unless and until the Court first

finds that the Second Amendment protects against in-

fringement by the state. That is, even if this Court were to

determine that the Second Amendment protects an indi-

vidual right to possess firearms, as Petitioners urge, the

Court would still need to resolve whether, under the

Fourteenth Amendment Due Process Clause, individual

possession of hand-held weapons (e.g. “arms”)"* implicates

a right so ,ooted in the traditions and conscience of the

American people as to be ranked “fundamental.” See

Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct.

2258, 2268 (1997) (quoting Snyder v. Massachusetts, 291

U.S. 97, 105, 54 S.Ct. 330, 332 (1934)). Assuming arguendo

the Second Amendment protects an individual right, it is

by no means evident that such a right is a fundamental

right “implied in the concept of ordered liberty.” Jd. For

example, while forty-two (42) states have state constitu-

tional provisions that explicitly recognize an individual

right to bear arms distinct from militia-related activity, or

the state courts have interpreted the right in this manner,

in only three (3) of those states have the courts held that

the right is fundamental (Ohio, Montana and Wisconsin)."

Resp. App. 98-100; see also state by state analysis of state

right to bear arms provisions and relevant law set forth at

http://www. firearms!awcenter.org.

This Court’s decisions addressing challenges to federal

weapons laws also indicate that this Court does not

consider weapons regulation to “trench upon any constitu-

tionally protected liberties.” See Lewis v. United States,

445 US. 55, 65 n.8, 100 S.Ct. 915, 921 n.8 (1980) (rejecting a

constitutional challenge to a felon in possession law, citing

* “Arms” is defined as “anything that a man wears for his defense,

or takes in his hands as a weapon.” DELUXE BLACK’s LAW DICTIONARY

109 (6th ed. 1990). 7

* Even in those three states, the courts use a “reasonableness test”

in such challenges. In Alaska and New Hampshire, the courts require a

substantia] interest/narrow means test.

Miller, infra, and stating that legislative firearms restric-

tions “are neither based upon constitutionally suspect

criteria, nor do they trench upon any constitutionally

protected liberties.”). See also Burton v. Sills, 394 US.

812, 89 S.Ct. 1486 (1969) (dismissing an appeal for “want

of a substantial federal question” where a state court held

that the Second Amendment does not confer a right to

bear arms unrelated to militia service). This Court has

never found any federal firearms or other weapons regula-

tion to implicate a fundamental right and has reviewed

various federal firearms regulations without addressing

the Second Amendment. See United States v. Bean, 537

U.S. 71, 123 S.Ct. 584 (2002); United States v. Lopez, 514

U.S. 549, 115 S.Ct. 1624 (1995).

For this Court to adjudicate the question of Second

Amendment “incorporation” on this record would also

violate the Court’s tenet against deciding any constitu-

tional question except with reference to the particular

facts to which it is to be applied or prematurely. See

Clinton v. Jones, 520 U.S. 681, 690 n.11, 117 S.Ct. 1636,

1642 (1997) (quoting Alabama State Federation of Labor v.

McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389-1390

(1945)). As noted above, the complaint pleads no Second

Amendment violation. On the facts pleaded below, both

the trial court and the Ninth Circuit upheld the Ordinance

against the First Amendment challenges. Nothing in the

Petition or the opinions below explains how or why the

Second Amendment, if held incorporated, would preclude

such a reasonable exercise of the local police power.

At most, what the Petition and the opinions below do

present, in the abstract, is one side of an ongoing debate

regarding the nature of the right protected by the Second

Amendment. As discussed more fully below, that debate

reflects no new consensus from which this Court could

divine an evolution of legal principle rendering its earlier

decisions regarding incorporation of the Second Amendment

or the scope of the Second Amendment “obsolete.” See

Casey, supra, 505 U.S. at 857.”°

(2) Even If It Were “Incorporated,” The Second

Amendment Protects Only Conduct That Bears

Some Reasonable Relationship To The Well Regu-

lated Militia; And Petitioners Fail To Show That

The Ordinance Infringes Such Protected Activity

Even if this Court’s incorporation doctrine did not bar

Petitioners’ Second Amendment claim, Petitioners have

failed to demonstrate that they stand in a position to show

legal injury in connection with that claim. Although this

Court’s Second Amendment jurisprudence has not been

extensive, it has been consistent. This Court has never

recognized an unqualified, individual right under the

Second Amendment to possess hand-held weapons gener-

ally or firearms specifically, and has linked the right

protected by the Second Amendment to the “preservation

or efficiency of a well regulated militia.” United States v.

Miller, 307 U.S. 174, 178, 59 S.Ct. 816 (1939); see also

Lewis v. U. S., supra, 445 U.S. at 65 n.8; see also Burton,

supra, 394 U.S. 812 discussed above. Moreover, as noted

above, the Court has reviewed individual challenges to

federal firearms laws without addressing the Second

Amendment at all.

The federal circuits that have addressed the scope of

Second Amendment have implemented the Miller holding

in various ways. Al! except the Fifth Circuit characterize

the right protected by the Amendment as collective in

* Given this lack of analysis of the Second Amendment claim as

applied to the facts of this case, Petitioners’ statement that “[e]very one

of the Ninth Circuit judges who authored an opinion in this case on the

Second Amendment, have [sic] suggested that Petitioners should have

won|,]” is humorous and wrong. Pet. 8. At most, these judges suggested

they agree with Petitioners’ view of the Second Amendment. However,

this is a lawsuit, not a debate.

nature or encompassing only those activities reasonably

related to the preservation or efficiency of a well regulated

militia. See Silveira, supra, 312 F.3d at 1063 n.10 (summa-

rizing the relevant circuit decisions). In the Ninth Circuit,

the court has developed an Article III “standing” rule.

Hickman v. Block,81 F.3d 98, 102 (9th Cir. 1996). This

“standing” rule is consistent with the Miller holding (albeit

an evolution out of that holding), and the relevant hold-

ings of the other circuit courts, except the Fifth Circuit,

because the “standing” rule requires that the Second

Amendment be asserted in connection with the preserva-

tion or efficiency of the well regulated state militia. Hick-

man, 81 F.3d at 102-103.

In contrast, Petitioners’ reading of Miller ignores the

foregoing aspect of Miller and the procedural context of

the case. In Miller, a federal indictment issued against two

individuals accused of transporting a shotgun with a

shortened barrel from Oklahoma into Arkansas without

registering the weapon in violation of the National Fire-

arms Act. They successfully demurred to the indictment on

the ground that the Act violated their “right to keep and

bear Arms” under the Second Amendment. The indictment

was quashed, and judgment entered against the federal

government. Miller, 307 U.S. at 175-176.

The United States then appealed directly to the

Supreme Court, seeking to have the indictment reinstated.

The defendants made no appearance in the appeal. Id. at

175. Thus, other than the firearm itself, the Court had

nothing before it to consider on the issue of whether

defendants possessed that weapon for purposes having

some reasonable relationship to the preservation or

efficiency of the well regulated militia." What is very

clear from the opinion is that the Court considered

‘© Therefore, there is nothing in the case or the lower court decision

from which Petitioners could derive a conclusion regarding what claims

the defendants made or did not make regarding the militia.

evidence of such a relationship essential to a claim under

the Second Amendment:

“The Constitution as originally adopted granted

to the Congress power — “To provide for calling

forth the Militia to execute the Laws of the Un-

ion, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplin-

ing, the Militia, and for governing such Part of

them as may be employed in the Service of the

Uni.ed States, reserving to the States respec-

tively, the Appointment of the Officers, and the

Authority of training the Militia according to the

discipline prescribed by Congress.’ U.S.C.A. Const.

art 1, s 8. With obvious purpose to assure the con-

tinuation and render possible the effectiveness of

such forces the declaration and guarante> »f the

Second Amendment were made. It must be inter-

preted and applied with that end in view.”

Miller, 307 U.S. at 178.

Without anything evidentiary before the Court —-

except the weapon — the Court concluded it could not infer

anything regarding the requisite relationship to that

“obvious purpose” from the firearm alone: “Certainly it is

not within judicial notice that this weapon is any part of

the ordinary military equipment or that its use could

contribute to the common defense.” Jd. at 177.

It is one thing for a reviewing court to avoid unneces-

sary adjudication of a constitutional issue, especially in

the total absence of the parties raising it below, and to

dispose of the matter by concluding that even if the

claimed right exists, it does not protect the conduct at

issue, as the Court did here. It is another thing entirely for

the reviewing court to accept the right claimed. Thus, the

Miiler Court did not characterize the right protected by

the Second Amendment as either individual or collective.

However, what Miller establishes about the Second

Amendment is stated exactly by the Court, as quoted

above. Because Petitioners ignore this admonition as to

how the Second Amendment is to be interpreted and

applied, Petitioners unsuccessfully reduce Miller to the

rule Petitioners would like to posit, e.g., that the Second

Amendment guarantees possession by individuals of

military-type weapons.” Pet. 20.

As shown above, the Ninth Circuit “standing” rule is

consistent with the militia-based interpretation of the

Second Amendment enunciated by this Court in Miller.

Contrary to the claims of Petitioners and the dissenting

opinions below, there has been no “development of consti-

tutional law” or consensus on the Second Amendment that

would make the Ninth Circuit’s implementation of Miller

erroneous.

Granted there have been a number of articles, princi-

pally in law school law journals (which are not peer-

reviewed) promoting an individual rights, non-militia

based interpretation of the Second Amendment. See Carl

T. Bogus, The History and Politics of Second Amendment

Scholarship: A Primer, 76 CHI.-KENT L. Rev. 3, 8-10

(2000). In turn, these articles have been criticized in

other scholarly articles. See id. Some of the most severe

critics have been historians, who take issue with how the

“individual rights” authors read (or fail to read) aspects of

" Tronically, Petitioners’ strained interpretation of Miller directly

contradicts Petitioners’ and the dissenting judges’ view that Petitioners’

Second Amendment individual rights claim is a better claim for this

Court to review on writ of certiorari than was that of the Silveira

petitioners, who sought review of the Ninth Circuit’s decision upholding

California’s assault weapon ban against a Second Amendment individ-

ual rights challenge. Pet. 8, 9. Certainly it is hard to imagine a better

case than Silveira for judicial review under the Second Amendment of

the alleged individual Second Amendment right to possess military-

style weapons that Petitioners derive from Miller.

* Notably there are more articles than authors because a number

of the authors have contributed multiple articles supporting the “individ-

ual rights” view. See Matthew S. Nosanchuk, The Embarrassing Interpre-

tation of the Second Amendment, 29 N. Ky. L. REv. 705, 771 (2002).

the relevant historical record.” Even Sanford Levinson,

whose article “The Embarrassing Second Amendment,” 99

YALE L.J. 637 (1989) is credited with inaugurating the

** For example, historian Don Higginbotham explores the failure of

the recent scholarship to examine the state militias as an institution:

“Virtually absent from these gun ownership and gun vights arguments,

in both the legal and the historical literature, is what Americans had to

say about control of the state militias before, during, and after the

writing of the Constitution. The subject is important because it shows

how radical was the shift from the states’ total control of their militias

to the sharing of the authority under the Constitution, how disturbing

this development was to the Antifederalists, how James Madison dealt

with Antifederalist concerns in the Second Amendment and, finally,

how the issue was resolved in the first half of the nineteenth century.”

Don Higginbotham, The Federalized Militia Debate: A Neglected Aspect

of Second Amendment Scholarship, 55 WM & Mary Q. 39, 40 (1998) at

Resp. App. 62. See also Robert E. Shalhope, To Keep and Bear Arms in

the Early Republic, 16 CONST. COMMENTARY 269, 272-273 (1999).

Shalhope questions the “insurrectionist” theory of the Second Amend-

ment, noting that the individuals who mounted early insurrections such

as the Whiskey Rebellion “clearly believed the militia to be literally the

entire body of the people in arms” rising up against what they perceived

as government tyranny, “[b]ut those who had been involved in writing

both the Constitution and the Bill of Rights — Antifederalists as well as

Federalists — united in opposition to such uprisings. These people

distinguished between the orderly use of extra-legal action during the

Revolution — when the people had no tegal recourse to challenge the

unjust acts of Parliament — and the insurrections in western Pennsy]l-

vania. All agreed that individuals could not spontaneously constitute

themselves as militia units outside the control of the state or assert an

individual right to bear arms to check government tyranny.” Similarly,

in the context of the “individual rights” theorists’ reliance on the right

to bear arms provisions of the original Pennsylvania Constitution,

historian Saul Cornell points cut that the Pennsylvania Test Acts,

enacted shortly after that Constitution, imposed penalties on citizens

who refused to take a state loyalty oath, including stripping them of

their right to vote, to sit on juries, and disarming them. Saul Cornell,

“Dont Know Much About History” The Current Crisis in Second

Amendment Scholarship, 29 N. Ky. L. REV. 657, 670-72 (2002). Cornell

notes that “|aJlthough a number of legal scholars have been won over to

the individual rights view, most early American historians reject that

view.” Jd. at 661.

spate of recent “individual rights” articles, concedes that

the claim that this scholarship represents the “standard”

view of the Amendment is unwise. See Sanford Levinson,

THE HISTORIANS’ COUNTERATTACK: SOME REFLECTIONS ON

THE HISTORIOGRAPHY OF THE SECOND AMENDMENT, GUNS,

CRIME AND PUNISHMENT IN AMERICA 93 (Harcourt ed. 2003).

Many prominent scholars have endorsed a militia-

based view of the right protected by the Second Amend-

ment. See, e.g., Jack N. Rakove, The Second Amendment:

The Highest Stage of Originalism, 76 CHI.-KENT L. REV.

103 (2000); David Yassky, The Second Amendment: Struc-

ture, History, and Constitutional Change, 99 Micu. L. REV.

588 (2000); Saul Cornell, Commonplace or Anachronism:

The Standard Model, The Second Amendment, and the

Problem of History in Contemporary Constitutional Theory,

16 CoNST. COMMENTARY 221 (1999); Garry Wills, A NECES-

sARY EviL: A HISTORY OF AMERICAN DISTRUST OF GOVERN-

MENT (1999); Kenneth R. Bowling, “A Tub to the Whale’:

The Founding Fathers and Adoption of the Federal Bill of

Rights, 8 J. EARLY REPUBLIC 223 (1988); Carl T. Bogus, The

Hidden History of the Second Amendment, 31 U.C. Davis

L. REV. 309, 376 n.318 (1998); Lawrence D. Cress, An

Armed Community: The Origins and Meaning of the Right

to Bear Arms, 71 J. AM. HIST. 22 (1984). See also Silveira,

supra, 312 F.3d at 1065-66, 1070 (citing some of the

foregoing articles as well as other texts and articles

supporting a collective-rights based interpretation of the

Amendment).

Petitioners and the dissenting opinions below point to

the Fifth Circuit’s opinion in United States v. Emerson,

270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907,

122 S.Ct. 2362 (2002), as articulating the “individual

rights” view of the Second Amendment on which scholarly

consensus has allegedly been reached. However, historian

Cornell points out that the Fifth Circuit made little use of

even the relevant academic law review literature, quoting

extensively instead from a text supplied to the court by the

Second Amendment Foundation, entitled The Origin of the

Second Amendment. Cornell states that the numerous

errors he found when checking the references cited in that

text suggest that the Emerson court erred in treating it as

an authoritative scholarly text. See Saul Cornell, “Don’t

Know Much About History” The Current Crisis in Second

Amendment Scholarship, 29 N. Ky. L. REv. 657, 677

(2002).

Likewise, since the Emerson case was handed down,

no other federal circuit court has reinterpreted the Second

Amendment as protecting a personal, individual right.

Accordingly, there is also no development of constitutional

law that would even place in question the Ninth Circuit’s

“standing” rule.”

(3) Under Any Interpretation Of The Second Amend-

ment, Petitioners Have Established No Standing

To Assert That Right

Assuming arguendo a non-militia based, extreme

individual-rights interpretation of the Second Amendment,

neither Petitioners, nor the dissenting opinions below

explain why Petitioners, as trade show operators, have

standing to raise that claim on their own behalf. Further,

* That Congress has made a statement defining the scope of the

Second Amendment when enacting legislation (Pet. 15, 16) and that the

U.S. Attorney General and Solicitor General now interpret the Second

Amendment in a manner at odds with the interpretation of every federal

circuit addressing that issue since Miller except the Fifth Circuit, are

interesting facts but only from the point of view of separation of powers.

This Court continues to make clear that under the U.S. Constitution it is

the judicial branch that determines what the law is, not the executive or

legislative branch. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 137

(1803); see also J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534

U.S. 124, 130-131, 122 S.Ct. 593 (2001) (determining that newly devel-

oped plant breeds are patentable, and citing to Diamond v. Chakrabarty,

447 U.S. 303, 315, 100 S.Ct. 2204, 2211 (1980) (“It is of course correct that

Congress, not the courts, must define the limits of patentability; but it is

equally true that once Congress has spoken ‘it is the province and duty of

the judicial department to say what the law is.’”)).

to the extent that Petitioners seek to assert the alleged

individual, Second Amendment rights of their gun vendors

and some trade show attendees,” they establish no legal

basis for third-party standing. See Elk Grove Unified

School District v. Newdow, __ U.S. __, 124 S.Ct. 2301,

2309 (2004) (explaining that this Court’s standing juris-

prudence contains Article III standing and prudential

standing; that prudential standing encompasses the rule

barring a litigant from raising another's legal rights, and

barring adjudication of generalized grievances more

appropriately addressed by the representative branches).”

What is clear is that the Petition and the dissenting

opinions nowhere explain how any interpretation of the

Second Amendment compels the County to regulate its

property so that Petitioners may continue to hold their

trade shows there profitably, or how Petitioners have

standing under that Amendment to sue the County if it

does not so regulate its property.

1 Respondents do not concede that these individuals have standing

to raise such claims either. See Section (2), above.

2 Moreover, while Judge Gould’s opinion characterizes the

Ordinance as having “the effect of foreclosing a traditional gun show”

(Pet. App. 26), it is unclear what he understands that term to mean or

what he believes it signifies here. The Code of Federal Regulations,

Title 27, Chapter 1, Subchapter M, Part 178, Section 178.100(b)(1)(B)

defines a gun show as “a function sponsored by any national, state or

local organization, devoted to the collection, competitive use, or other

sporting use of firearms or an organization or association that sponsors

functions devoted to the collection, competitive use, or other sporting

use of firearms.” California state law incorporates this definition. See

Cal. Penal Code § 12071(b)(1)(B) (stating, in pertinent part: “[a] person

licensed pursuant to subdivision (a) may take possession of firearms

and commence preparation of registers for the sale, delivery, or transfer

of firearms at gun shows or events, as defined in section 178.100 of Title

27 of the Code of Federal Regulations, or its successor, if the gun show

or event is not conducted from any motorized or towed vehicle. .. . ”).

(4) Even If Petitioners Could Establish Standing To

Assert An Individual Right To Bear Arms, Under

Any Interpretation Of The Second Amendment

The Challenged Ordinance Is Reasonable And

Thus Constitutional

Even if Petitioners overcame the hurdles of incorpora-

tion and standing, it is not necessary for this Court to

examine the merits of their individual rights claim. Under

any interpretation of the Second Amendment, the Ordi-

nance is a reasonable regulation, narrowly drawn to

further a substantial purpose, and thus it would not

violate the Amendment. See, e.g., Emerson, supra, 270

F.3d 203, 261 (acknowledging that the right protected by

the Second Amendment is subject to reasonable restric-

tions); see also Resp. App. 98-100 (illustrating that in the

forty-two (42) states where the state constitution contains

a provision protecting an individual “right to keep and

bear arms,” the state courts in forty (40) of these states

use a “reasonableness” test in challenges to firearms laws

under the constitutional provisions).

Neither the Petition nor any of the dissents proposes

how an individual-rights interpretation of the Second

Amendment would place in question the legislative action

challenged. In fact, courts have found constitutional local

firearms laws that are far more restrictive than the

Ordinance, when those laws were challenged under state

constitutional provisions expressly protecting an individual

right to possess arms. See, e.g., Quilici v. Village of Morton

Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S.

863, 104 S.Ct. 194 (1983) (upholding village-wide ban on

handgun possession against challenge based on state

constitutional right to bear arms); see also Arnold v. City

of Cleveland, 67 Ohio St.3d 35, 43, 616 N.E.2d 163 (1993)

(upholding city-wide ban on possession and sale of assault

weapons against state constitutional right to bear arms

challenge).

(5) Petitioners’ Failure To Convince The Trial Court

Or The Three-Judge Ninth Circuit Panel That

The Ordinance Implicates The First Amendment

Does Not Support Summary Reversal.

As noted above, Petitioners did not believe their First

Amendment claim was strong enough to seek rehearing en

banc on that claim. Resp. App. 34, 39-40, 57-59. Yet here

they seek the extraordinary remedy of summary reversal.

However, as shown below, the Ordinance regulates con-

duct, not speech. Even assuming arguendo an incidental

impact on speech, the Ordinance is a valid time, place or

manner restriction because it is narrowly drawn, serves a

substantial interest not connected to the suppression of

speech and leaves open ample alternative forums. Pet.

App. 57-58. Summary reversal on this claim is therefore

not appropriate.

The threshold inquiry in every First Amendment

claim is whether the challenged government action in-

volves speech or expression. Texas v. Johnson, 491 U.S.

397, 403-404, 109 S.Ct. 2533, 2538-2539 (1989). Conduct

does not possess sufficient communicative elements to

bring the First Amendment into play unless-an intent to

convey a message is present and “the likelihood [is] great

that the message would be understood by those who

viewed it.” Id. at 404. As the District Court concluded,

Petitioners do not and cannot meet this burden. Mere

possession of guns on County-owned property conveys no

clear message to anyone. Pet. App. 52-50. Petitioners

admit that persons possess guns at their trade show for a

host of reasons, to sell, to use as props, because the par-

ticular firearm has some alleged military or historical

importance, as a political statement, etc. R, T1, 3, { 10; 9-

10, { 36.

This Court has consistently rejected the notion that

“an apparently limitless variety of conduct can be labeled

‘speech’ whenever the person engaging in the conduct

intends thereby to express an idea.” O’Brien, 391 U.S. at

376. Moreover, the only cases in which this Court has

invalidated laws regulating expressive conduct are those in

which it has concluded that the government has prohibited

that conduct “precisely because of its communicative

attributes.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577,

111 S.Ct. 2456, 2466 (1991) (Scalia, J. concurring) (citing

Texas, supra, Spence, supra, among other cases) (emphasis

in original).

As the District Court recognized, the County passed

the Ordinance in the interests of the public health and

safety. Pet. App. 54-55. The stated public safety reasons

are unrelated to any alleged communicative aspects of gun

possession. Pet. App. 56. Even assuming arguendo an

incidental restriction on First Amendment freedom of speech

or association rights resulting from the Ordinance, such

restriction is no greater than essential for furtherance of this

governmental interest. Accordingly, the Ordinance meets the

test established in O’Brien. See 391 U.S. at 369.

Moreover, a facial First Amendment claim such as

Petitioners’ fails unless the challenged law is directed

narrowly and specifically at expression or conduct com-

monly associated with expression. See Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750, 760, 108 S.Ct. 2138

(1988). Firearms possession, to which the Ordinance is

directed, fits into neither category. See, e.g., Broadrick v.

Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-2918

(1973) (examining a facial overbreadth challenge to a law

regulating conduct and stating “[a]lthough such laws, if

too broadly worded, may deter protected speech to some

unknown extent, there comes a point where that effect — at

best a prediction — cannot, with confidence, justify invali-

dating a statute on its face and so prohibiting a State from

enforcing the statute against conduct that is admittedly

within its power to proscribe.”).

Petitioners’ effort to claim First Amendment protec-

tion because some vendors display inscribed firearms and

antique firearms also fails. See One World One Family

Now v. City and County of Honolulu, 76 F.3d 1009, 1012-

1015, 1012 n.4 (9th Cir. 1996), cert. denied, 519 U.S. 1009,

117 S.Ct. 554 (1996). Like the Ordinance in One World, the

challenged Ordinance meets the test for a valid time, place

or manner restriction, as described above and as the

District Court found, even if arguendo the presence of

inscribed or embellished items at trade shows implicates

the First Amendment. R, T15, 9-10. Petitioners’ challenge

is governed by One World except that the Ordinance is

challenged with respect to the fairgrounds, a limited

public forum, while the ordinance in One World involved

the sidewalks, a traditional public forum. See Heffron v.

Int'l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640,

101 S.Ct. 2559 (1981). Even in a traditional public forum,

however, where a regulation does not exclude speakers

from that forum based on speech content, the appropriate

standard is the standard governing time, place or manner

restrictions — the same standard that applies to a limited

public forum. See One World, 76 F.3d 1009, 1012.

Like the ordinance in One World, the challenged

Ordinance also leaves open ample alternate channels of

communication. None of the speech or associational activt-

ties that the Nordykes allege occur at their trade shows are

prohibited by the Ordinance. Thus, the Fairgrounds

remains a forum for those activities. In addition, there are

ample places where trade shows may be held that are not

governed by the Ordinance.”

> According to the estimates of the National Association of Arms

Shows, every weekend in this country there are more than 100 shows

where firearms are available for sale and purchase (i.e., more than 5000

a year). See Tom Diaz, MAKING A KILLING: THE BUSINESS OF GUNS IN

AMERICA 49 (1999) (citing “Gun Show Dealers Spread Thin,” Firearms

Business, Nov. 15, 1995, at 4). This proliferation of gun sale-type shows

results directly from provisions of the 1986 Firearms Owners’ Protec-

tion- Act (aka McClure-Volkmer) which liberalized the restrictions on

licensed dealer sales, enabling licensed dealers to sell firearms away

from their licensed premises if at a “gun show or event” held in the

same state. Diaz, supra at 49 (citing a letter submitted to hearings of

(Continued on following page)

While it is unclear whether Petitioners also seek sum-

mary reversal of their commercial speech claim, neither

reversal nor review of that claim is warranted because as the

courts below readily concluded, the Ordinance infringes no

commercial speech rights. It is established law that the

buying and selling of guns is commercial activity, not speech

and that such activity per se is not afforded First Amend-

ment protection. See Nordyke v. Santa Clara County, 110

F. 3d 707, 710 (9th Cir. 1997) (“Nordyke I”) (“We agree that

the act of exchanging money for a gun is not ‘speech’

within the meaning of the First Amendment.”).

Unlike the ordinance in Nordyke I, the challenged

Ordinance does not prohibit offers for sale and/or an

invitation for an offer to purchase. It also does not prohibit

speech aimed at soliciting, offering or engaging in sales of

guns. All of those activities are permitted under the

Ordinance. The only thing prohibited by the Ordinance is

actual possession of firearms on County-owned property.

Moreover, this prohibition is effected by the iaeiatatis

not by a lease addendum or contract.

Petitioners complain that the Ordinance prohibits

display of the firearms by persons who wish to display

—__them. However, as Nordyke I demonstrates, if possession

of firearms is prohibited by law, display for whatever purpose

~ is no longer a lawful activity and need not be protected. A

person’s desire to display an item does not create a First

Amendment right to display that item in a location where a

content-neutral law prohibits its possession.

Finally, the Ordinance is also well within the constitu-

tional scope of government regulation of activities on the

fairgrounds under the “public forum doctrine.” As noted

above, the fairgrounds is, at most, a limited public forum.

See Heffron, supra, 452 U.S. at 656 (1981) (state fair-

grounds in use for a state fair was a limited public forum).

the U.S. House Subcommittee on Crime and Criminal Justice by an

executive director of the National Alliance of Stocking Gun Dealers).

Even if the fairgrounds were a traditional public forum —

and it is not — the challenged Ordinance, like the ordi-

nance in One World, does not discriminate against any

class of speakers based on content of their speech. R, T13,

10-11; One World, 76 F.3d 1009, 1012. Accordingly, the

challenged Ordinance meets the test for a valid time, place

or manner restrictions.

This Court’s precedents also prohibit Petitioners from

bringing their claims within the ambit of the First

Amendment by urging this Court to second-guess the

motives of the legislators in adopting the Ordinance.

Reduced to its essence, this attempt to force the Court

behind the legislative findings on the face of the Ordi-

nance comprises Petitioners’ entire argument for summary

reversal on the First Amendment claims.” Judicial probing

into legislative motives is barred by the doctrine of separa-

tion of powers, as recognized in the “deliberative process

privilege.” United States v. Morgan, 313 U.S. 409, 61 S.Ct.

999 (1941).

The courts have consistently reaffirmed this prohibi-

tion on second-guessing the motives of legislators. R, T15,

8-9. See, e.g., City of Las Vegas v. Foley, 747 F.2d 1294,

1297-1298 (9th Cir. 1984) (citing Hing v. Crowley, 113 USS.

703, 710-11, 5 S.Ct. 730 (1885) (“Individual legislators may

vote for a particular statute for a variety of reasons. ‘The

diverse character of such motives, and the impossibility of

penetrating into the hearts of men and ascertaining the

truth, precludes all such inquiries as impracticable and

futile.’”)). Moreover, as the District Court specifically

found and as is shown here, the Ordinance itself passes

constitutional muster. This Court will not strike down an

* Petitioners improperly characterize Supervisor King’s state-

ments in a memo and a press release before the Ordinance was given a

first reading and statements they allege she made at a press conference

as the “legislative history.” Moreover, as shown here, judicial review is

confined to the face of the Ordinance.

_28

otherwise constitutional statute on the basis of an alleged

illicit legislative motive. O’Brien, 391 U.S. at 383.

Petitioners string together statements from various

First Amendment cases, taken out of context, and attempt

to cobble together a rule that any regulation that “affects”

First Amendment interests must be narrowly drav7n to

effectuate a compelling state interest. Pet. 27. However,

this rule is unsupported by this Court’s decisions, includ-

ing those cited by Petitioners. Perry Educ. Ass’n v. Perry

- Local Educators, 460 U.S. 37, 103 S.Ct. 948 (1983) involves

a challenge to a provision in a collective bargaining agree-

ment giving one union’s bargaining representative exclusive

access to teachers’ mailboxes. The Court found that the

mailboxes were not traditional or limited public forums and

upheid the provision as reasonable. In deciding the issue,

the Court summarized the rule that in a public forum, a

state may enforce content-neutral regulations of time,

place or manner provided they serve a significant govern-

ment interest and are narrowly drawn. In the context of

content-based regulations, the Court note* that such a

regulation must be necessary to serve a compelling state

interest, and must be narrowly related to that interest.

The case does not establish that the compelling state

interest rule applies where the regulation at issue is

content-neutral, as here. The case is consistent with the !

cases cited by Respondents. |

In Meyer v. Grant, 486 U.S. 414, 427, 108 S.Ct. 1886

(1988) the Court invalidated a state law prohibiting paid

circulars for initiative petitions, finding that presenting

written viewpoints about such petitions was “core political

speech,” and the prohibition on paid circulars had the

effect of limiting that speech. Similarly, Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569, 107 S.Ct.

2568 (1987) invalidated a Board resolution banning “First

Amendment activities” at Los Angeles International

Airport. The Court found that the resolution prohibited all

expressive activity and did not seek to regulate merely

ES ai Se <a

a ean See ae

expressive activity that might create problems such as

congestion. Here the Ordinance regulates conduct, not

speech, and furthers a substantial public interest without

regard to speech content. Further, as shown above, even

assuming arguendo an incidental impact on speech, the

Ordinance is a valid time, place or manner regulation, as

defined in Perry.

Similarly, Petitioners cite Hurley v. Irish-American

Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557,

569, 115 S.Ct. 2338 (1995) for the proposition that display

of guns should be protected. In Hurley, the Court struck

down a state court order requiring a private group that

was planning a parade to include the Irish-American Gay,

Lesbian and Bisexual Group in the parade. In discussing

parades, the Court noted that “The protected expression

thet inheres in a parade is not limited to its banners and

songs, however, for the Constitution looks beyond written

or spoken words as mediums of expression.” Jd. Petitioners

fail to show how this observation undermines this Court's

cases regarding content-neutral regulation cited by Re-

spondents above. Likewise, in Edwards v. Goldsboro, 178

F.3d 231 (4th Cir. 1999), a police officer was suspended for

teaching a course in handgun safety, off duty, at a location

unrelated to the City, after he was previously denied

permission to do so by the police chief. He sued under

Section 1983 and his claims were dismissed after his

motion for leave to amend was denied. The Fourth Circuit

reinstated several of his claims, including his First

Amendment claims, finding his teaching of the safety

course to be protected by the First Amendment. Petition-

ers fail to show how this holding precludes a content-

neutral, time, place or manner prohibition cf firearms on

certain county-owned property that leaves open ample

alternative forums for handgun-safety courses.

~CONCLUSION

For the foregoing reasons, Respondents respectfully

request that the petition for certiorari and Petitioners’

request for summary reversal be denied.

Respectfully submitted,

SAYRE WEAVER

Counsel of Record

RICHARDS, WATSON & GERSHON

A Professional Corporation

Attorneys for Respondents

Mary V. King, Gail Steele,

Wilma Chan, Keith Carson,

Scott Haggerty, the County of

. Alameda, and the County of

Alameda Board of Supervisors

RICHARD WINNIE

County Counsel

County of Alameda

Resp. App.1 —

California Statutes

Cal.Health & Safety Code § 34240.

Housing authority of county or city; transaction

of business; resolution of governing body

In each county and city there is a public body corporate

and politic known as the housing authoricy of the county

or city. The authority shall not transact any business or

exercise its powers unless, by resolution, the governing

body of the county or city declares that there is need for an

authority to function in it.

West’s Ann.Cal.Health & Safety Code § 34240

Cal. Health & Safety Code § 34201.

Legislative findings and declaration of policy

It is hereby declared:

(a) That there exist in the State insanitary or unsafe

dwelling accommodations and that persons of low income

are forced to reside in such accommodations; that within

the State there is a shortage of safe or sanitary dwelling

accommodations available at rents which persons of low

income can afford and that such persons are forced to

occupy overcrowded and congested dwelling accommoda-

tions; that these conditions cause an increase in and

spread of disease and crime and constitute a menace to the

health, safety, morals, and welfare of the residents of the

State and impair economic values; that these conditions

necessitate excessive and disproportionate expenditures of

public funds for crime prevention and punishment, public

health and safety, fire and accident protection, and other

public services and facilities.

Resp. App. 2

(b) That these slum areas cannot be cleared, nor can the

shortage of safe and sanitary dwellings for persons of low

income be relieved, through the operation of private

enterprise, and that the construction of housing projects

for persons of low income would therefore not be competi-

tive with private enterprise.

the areas in which insanitary or unsafe housing conditions

exist and the providing of safe and sanitary dwelling

accommodations for persons of low income are public uses

and purposes for which public money may be spent and

private property acquired and are governmental functions

of state concern; that it is in the public interest that work

on such projects be commenced as soon as possible in order

to relieve unemployment which now constitutes an emer-

gency; and the necessity in the public interest for the

provisions of this chapter is declared as a matter of legis-

lative determination.

West’s Ann.Cal.Health & Safety Code § 34201

Cal. Health & Safety Code § 34400.

Property and bonds of housing

authority exempted from taxation

It has been found and declared in the Housing Authorities

Law [Section 34200] and the Housing Cooperation Law

[Section 34500 et seq.] (a) that there exist in the State

housing conditions which constitute a menace to the

health, safety, morals and welfare of the residents of the

State; (b) that these conditions necessitate excessive and

disproportionate expenditures of public funds for crime

prevention and punishment, public health and safety, fire

Resp. App. 3

and accident prevention, and other public services and

facilities; (c) that the public interest requires the remedy-

ing of these conditions by the creation of housing authori-

ties to undertake projects for slum clearance and for

providing safe and sanitary dwelling accommodations for

persons who lack sufficient income to enable them to live

in decent, safe and sanitary dwellings without overcrowd-

ing; and (d) that such housing projects are for public uses

and purposes and are governmental functions of state

concern. As a matter of legislative determination, it is

hereby found and declared that the property and bonds of

a housing authority are of such character as shall be

exempt from taxation.

West’s Ann.Cal.Health & Safety Code § 34400

Cal. Health & Safety Code § 34315.

Acquisition and disposition of

property; insurance; loans

An authority may:

(a) Lease or rent any dwellings, houses, accommodations,

lands, buildings, structures, or facilities embraced in any

housing project, or a project assisted pursuant to Section

34312.3, and establish and revise the rents or charges for

them.

(b) Own, hold, and improve real or personal property.

grant, bequest, devise,or otherwise, any real or personal

property or any interest in property.

(d) Acquire any real property by eminent domain.

Resp. App. 4

(e) Sell, lease, exchange, transfer, assign, pledge, or

dispose of any real or personal property or any interest in

it.

(f) Insure or provide for the insurance of any real or

personal property or operations of the authority against

any risks or hazards.

(g) Lend upon the security of a mortgage or deed of trust,

directly or by purchase from one or more qualified mort-

gage lenders, in connection with the sale of real property |

to persons of low income and to other persons pursuant to

Section 34312.3, moneys for the financing of construction

or rehabilitation pursuant to this part, or the implementa-

tion of government housing and rehabilitation financing

programs for persons of low income and for other persons

when acting pursuant to authorization contained in

Section 34312.3, Part 13 (commencing with Section 37910)

of this division, or Part 3 (commencing with Section 50900)

of Division 31, subject only to the limitations on income of

borrowers or residents prescribed by the statutory provi-

sions under which the authority is acting. With respect to

financing activities conducted pursuant to Part 3 (com-

mencing with Section 50900) or Part 4 (commencing with

Section 51600) of Division 31, the authority shall obtain

certification as a qualified mortgage lender pursuant to

Section 50094.

(h) Procure insurance or guarantees from the federal

government or the California Housing Finance Agency or

from any person licensed to insure mortgages in this state

of the payment of all or part of any debts, whether or not

incurred by the authority, secured by mortgages or deeds

of trust on any property included in any of its housing

projects or otherwise financed pursuant to this chapter or

Resp. App. 5

secured by mortgages or deeds of trust pursuant to Part 13

(commencing with Section 37910) of this division or Part 3

(commencing with Section 50900) of Division 31.

West’s Ann.Cal.Health & Safety Code § 34315

Cal. Penal Code § 171b.

Unauthorized possession of weapons in

state or local public building or at

public meeting; offense; punishment

(a) Any person who brings or possesses within any state

or local public building or at any meeting required to be

open to the public pursuant to Chapter 9 (commencing

with Section 54950) of Part 1 of Division 2 of Title 5 of, or

Article 9 (commencing with Section 11120) of Chapter 1 of

Part 1 of Division 3 of Title 2 of, the Government Code,

any of the following is guilty of a public offense punishable

by imprisonment in a county jail for not more than one

year, or in the state prison:

(1) Any firearm.

(2) Any deadly weapon described in Section 653k or

12020.

(3) Any knife with a blade length in excess of four inches,

the blade of which is fixed or is capable of being fixed in an

unguarded position by the use of one or two hands.

(4) Any unauthorized tear gas weapon.

(5) Any taser or stun gun, as defined in Section 244.5.

(6) Any instrument that expels a metallic projectile, such

as a BB or pellet, through the force of air pressure, CO,

Resp. App. 6

pressure, or spring action, or any spot marker gun or paint

gun.

(b) Subdivision (a) shall not apply to, or affect, any of the

following:

(1) A person who possesses weapons in, or transports

weapons into, a court of law to be used as evidence.

(2)(A) A duly appointed peace officer as defined in Chap-

ter 4.5 (commencing with Section 830) of Title 3 of Part 2,

a retired peace officer with authorization to carry con-

cealed weapons as described in subdivision (a) of Section

12027, a full-time paid peace officer of another state or the

federal government who is carrying out official duties

while in California, or any person summoned by any of

these officers to assist in making arrests or preserving the

peace while he or she is actually engaged in assisting the

officer.

(B) Notwithstanding subparagraph (A), subdivision (a)

shall apply to any person who brings or possesses any

weapon specified therein within any courtroom if he or she

is a party to an action pending before the court.

(3) A person holding a valid license to carry the firearm

pursuant to Article 3 (commencing with Section 12050) of

Chapter 1 of Title 2 of Part 4.

(4) A person who has permission to possess that weapon

granted in writing by a duly authorized official who is in

charge of the security of the state or local government

building.

(5) A person who lawfully resides in, lawfully owns, or is

in lawful possession of, that building with respect to those

Resp. App. 7

portions of the building that are not owned or leased by

the state or local government.

(6) A person licensed or registered in accordance with,

and acting within the course and scope of, Chapter 11.5

(commencing with Section 7512) or Chapter 11.6 (com-

mencing with Section 7590) of Division 3 of the Business

and Professions Code who has been hired by the owner or

manager of the building if the person has permission

pursuant to paragraph (5).

(7A) A person who, for the purpose of sale or trade, -

brings any weapon that may otherwise be lawfully trans-

ferred, into a gun show conducted pursuant to Sections

12071.1 and 12071.4.

(B) A person who, for purposes of an authorized public

exhibition, brings any weapon that may otherwise be

lawfully possessed, into a gun show conducted pursuant to

Sections 12071.1 and 12071.4.

means a building that meets all of the following criteria:

(1) It is a building or part of a building owned or leased

by the state or local government, if state or local public

employees are regularly present for the purposes of per-

forming their official duties. A state or local public building

includes, but is not limited to, a building that contains a

courtroom.

(2) Itis not a building or facility, or a part thereof, that is

referred to in Section 171c, 171d, 626.9, 626.95, or 626.10

of this code, or in Section 18544 of the Elections Code.

Resp. App. 8

(3) It is a building not regularly used, and not intended

to be used, by state or local employees as a place of resi-

dence.

West’s Ann.Cal.Penal Code § 171b

Resp. App. 9

9th Circuit No. 99-17551 [DC# 99-4398-MJJ]

IN THE

UNITED STATES COURT OF APPEALS

FOR THE

NINTH CIRCUIT

RUSSELL AL'.EN NORDYKE and SALLIE ANN

NORDYKE, dba TS TRADE SHOWS, JESS B. GUY,

DUANE DARR, WILLIAM J. JONES, DARYL N.

DAVIS, TASIANA WERTYSCHYN, JEAN LEE, TODD

BALTES, DENNIS BLAIR, R.L. (Bob) ADAMS, ROGER

BAKER, MIKE FOURNIER and VIRGIL McVICKER,

Plaintiffs-Appellants,

vs.

MARY V. KING, GAIL STEELE, WILMA CHAN,

KEITH CARSON, SCOTT HAGGERTY, THE

COUNTY OF ALAMEDA, and THE COUNTY

OF ALAMEDA BOARD OF SUPERVISORS,

Defendants-Appellees.

APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

MOTION TO STRIKE PORTIONS OF

APPELLANTS’ EXCERPTS OF RECORD AND

REFERENCES IN APPELLANTS’ OPENING BRIEF

TO SUCH PORTIONS

Resp. App. 10

RICHARD WINNIE (State Bar No. 68048)

COUNTY COUNSEL

COUNTY OF ALAMEDA

SAYRE WEAVER (State Bar No. 116957)

RICHARDS, WATSON & GERSHON

A Professional Corporation

44 Montgomery Street, Suite 960

San Francisco, California 94104-4611

(415) 421-8484

Attorneys for Defendants-Appellees

MOTION TO STRIKE PORTIONS OF

APPELLANTS’ EXCERPTS OF RECORD

AND REFERENCES IN APPELLANTS’

OPENING BRIEF TO SUCH PORTIONS

Pursuant to Rules 27 and 10 of the Federal Rules of

Appellate Procedure (F.R.A.P.), Circuit Rule 27, and

Kirshner v. Uniden Corp. of America, 842 F.2d 1074 (9th

Cir. 1988), Defendants-Appellees Mary V. King, Gail

Steele,.Wilma Chan, Keith Carson, Scott Haggerty, the

County of Alameda, and the County of Alameda Board of

Supervisors (“County”) move this Court to strike portions

of Appellants’ Excerpts of Record, namely Appellant’s

Amended Verified Complaint (“Amended Complaint”)

[Exhibit “C”] and any references in Appellant’s Opening

Brief to the Amended Complaint on the ground that

Appellants have improperly included the Amended Com-

plaint in the Excerpts of Record.

On September 17, 1999 Appellants filed an initial

complaint naming Alameda County, the Alameda County

Board of Supervisors as a body, and naming each of the

individual board members, and challenging the Ordinance

on First and Fourteenth Amendment grounds, and seeking

Resp. App. 11

damages and injunctive relief and a declaration based

upon a state preemption claim. [Exhibit “A” Docket No. 1)

On September 30, 1999, Appellants moved the District

Court for a temporary restraining order to enjoin the

application of the Ordinance. [Exhibit “A” Docket No. 12]

On or about September 28, 1999, the County filed an

opposition to the Appellant’s motion for a temporary

restraining order. [Exhibit “A” Docket No. 29]

On October 28, 1999, the District Court heard argu-

ments on Appellant’s motion for a temporary restraining

order. On November 3, 1999, the District Court issued its

order denying the Appellants’ motion for injunctive relief.

[Exhibit “B”]

On October 7, 1999, the County filed a motion to

dismiss the original complaint. [Exhibit “A” Docket No. 45]

Appellants did not file a response to the motion to dismiss,

but instead on November 10, 1999, and after the District

Court’s November 3, 1999 denial of Appellants’ motion for

a temporary restraining order and preliminary injunction,

the Nordykes filed- an Amended Verified Complaint,

adding 12 individual plaintiffs, some allegations and

exhibits and switching the order of the fourth and fifth

claims. [Exhibit “C”]

As shown more fully below, Appellants improperly rely

on their Amended Complaint to support their appeal from

the District Court’s order denying their motion for injunc-

tive relief. Under FR.A.P. Rule 10(a), the Record on Appeal

consists of the following material:

“Composition of the Record on Appeal. The fol-

lowing items constitute the record on appeal:

(1) the original papers and exhibits filed in the

district court;

Resp. App. 12

(2) the transcript of proceedings, if any, and

(3) a certified copy of the docket entries pre-

pared by the district clerk.”

Here, Appellants filed the Amended Complaint with

the District Court after the District Court issued its order

denying the Appellants’ motion for a temporary restrain-

ing order and preliminary injunction. The Court in

Kirshner v. Uniden Corp. of America, 842, F.2d 1074, 1077

(9th Cir. 1988) held that “[p/apers submitted to the district

court after the ruling that is challenged on appeal should

be stricken from the record on appeal.” Id. at 1077-1078

(emphasis added) [quoting United States v. Walker, 601

F.2d 1051, 1054-1055 (9th Cir. 1979) (“‘We are here con-

cerned only with the record before the trial judge when his

decision was made.’”) (italics in case); citing Heath uv.

Helmick, 173 F.2d 156, 156-157 (9th Cir. 1949) (“striking

from record on appeal papers that were filed in district

court after judgment from which appeal was taken) (“The

cause must be tried here upon the record made at the

original trial.”)]

In Kirshner, the contested portions of the Excerpts of

Record were served on the court one month after the

hearing on the motion and one week after entry of the

protective order. See id. at 1078. Here, Appellants filed the

Amended complaint on November 10, 1999 — twelve days

after the hearing on the motion for a temporary restrain-

ing order and preliminary injunction and seven days after

the District Court issued its order denying Appellants’

motion. Because the Amended Complaint was not before

the District Court at the time it issued its order, it is not

properly part of the record on appeal and should be

stricken from the Excerpts of Record. See Kirshner v.

Uniden Corp. of America, 842, F.2d 1074, 1077 (9th Cir.

Resp. App. 13

1988). Thus, the Court should not give any consideration

to the Amended Complaint in adjudicating this appeal. See

id. at 1078.

Accordingly, the County requests that the Court strike

the Amended Complaint from the Excerpts of Record and

any such references to the Amended Complaint in support

of their Opening Brief.

Dated: March 31, 2000 RICHARD WINNIE

COUNTY COUNSEL,

COUNTY OF ALAMEDA

SAYRE WEAVER

RICHARDS, WATSON

& GERSHON

A Professional Corporation

Sayre Weaver

.attorney for Appellees

Mary V. King, Gail Steele,

Wilma Chan, Keith Carson,

Scott Haggerty, the

County of Alameda,

and the County of Alameda

Board of Supervisors

Resp. App. 14

No. S091549

In the Supreme Court

of the

State of California

RUSSELL ALLEN NORDYKE, et al.

Plaintiffs/Appellants/Petitioners

MARY V. KING, et al.

Defendants/ Appellees/Respondents

On Certification from the

United States Court of Appeals for the Ninth Circuit

Case No. 99-17551

On Appeal from the United States District Court

for the Northern District of California

The Honorable Martin J. Jenkins,

District Judge Presiding

Case No. DC# 99-4398-MJJ

MOTION TO STRIKE PORTIONS OF

APPELLANTS’-PETITIONERS’ OPENING BRIEF

RICHARD WINNIE (State Bar No. 68048)

COUNTY COUNSEL

COUNTY OF ALAMEDA

SAYRE WEAVER (State Bar No. 116957)

PAULA GUTIERREZ BAEZA (State Bar No. 198653)

RICHARDS WATSON & GERSHON

A Professional Corporation

Resp. App. 15

44 Montgomery Street, Suite 960

San Francisco, California 94104-4611

(415) 421-8484

Attorneys for Defendants/Appellees/Respondents

MOTION TO STRIKE PORTIONS OF

APPELLANTS’-PETITIONERS’ OPENING

BRIEF; DECLARATION

TO THE HONORABLE CHIEF JUSTICE AND ASSOCI-

ATE JUSTICES OF THE CALIFORNIA SUPREME

COURT.

Pursuant to Rules 13 and 18 of the California Rules of

Court, Defendants-Appellees-Respondents Mary V. King,

Gail Steele, Wilma Chan, Keith Carson, Scott Haggerty,

the County of Alameda, and the County of Alameda Board

of Supervisors (collectively “County”) move this Court for

an order that Appellants’-Petitioners’ Opening Brief

(“Petitioners’ Opening Brief”) be returned and corrected by

removal of certain portions of Petitioners’ Opening Brief,

namely the material cited by Petitioners’ in their Opening

Brief which is alleged only in their Amended Verified

Complaint (‘Amended Complaint”) and the references to

their Amended Complaint identified below, on the

grounds that the Amended Complaint had not been

filed and was not before the United States District

Court for the Northern District of California (“Dis-

trict Court”) when it entered the order from which

Petitioners appealed to the United States Court of

Appeals for the Ninth Circuit (“Ninth Circuit”). See

People v. Brawley (1969) 1 Cal.3d 277, 294-295 cert. denied

(1971) 400 U.S. 993. Thus, it is improper for Petitioners to

rely on material in the Amended Complaint and to cite to

the Amended Complaint to support their Opening Brief.

Resp. App. 16

The portions of the Opening Brief to which the County

objects here are:

1. Page 3 of Petitioners’ Opening Brief,

paragraph 2 beginning with the sentence on

Page 3 of Brief, stating “Plaintiff/Appellant JESS

B. GUY is an Attorney at Law, shooting enthusi-

ast and collector of used and antique firearms.”

to the end of that paragraph, ending with the

sentence on Page 5 of Brief, stating “All of the

foregoing plaintiff/appellants are frequent Ex-

hibitor, Patrons and Vendors at the TS TRADE

SHOWS held at the Alameda County Fair-

grounds.”

2. Page 5 of Petitioners’ Opening Brief, first

full paragraph as follows: “[ER, Tab 16, Exhibit

B);” “[ER, Tab 16, Exhibit A];” “[ER, Tab 16, Ex-

hibit H].”

3. Page 5 of Petitioners’ Opening Brief, sec-

ond full paragraph as follows: “[ER, Tab 16, Ex-

hibit [sic]].”

4. Page 6 of Petitioners’ Opening Brief, first

full paragraph as follows: “[ER, Tab 16, Exhibit

E].”

5. Page 6 of Petitioners’ Opening Brief, scc-

ond full paragraph as follows: “[ER, Tab 16, Ex-

hibit F].”

6. Pages 6 of Petitioners’ Opening Brief,

last full paragraph as follows: “[ER, Tab 16, Ex-

hibit G].”

7. Page 8 of Petitioners’ Opening Brief, last

full paragraph as follows: “[ER, Tab 16, page 2];”

“(ER, Tab 16, Exhibit E].”

Resp. App. 17

8. Page 37of Petitioners’ Opening Brief,

first full paragraph as follows: “[ER, Tab 16, Ex-

hibit E].” |

9. Page 38 of Petitioners’ Opening Brief,

second full paragraph as follows: “[Tab 16, pg.

002, ¥ 5).”

10. Page 39 of Petitioners’ Opening Brief,

first paragraph, as follows: “[ER, Tab 16, Exhibit

E];” “[ER, Tab 16, Exhibit D].”

11. Page 40 of Petitioners’ Opening Brief,

second full paragraph as follows: “[Tab 16, Ex-

hibit K].”

This motion is made pursuant to Rules 13 and 18 of

the California Rules of Court and People v. Brawley (1969)

1 Cal.3d 277, 294-295 cert. denied (1971) 400 U.S. 993 on

the grounds that the Amended Complaint was not before

the District Court when it entered the Order from which

Petitioners appealed and thus is not properly part of the

record before this Court. Accordingly, the material found

only in the Amended Complaint and all references to the

Amended Complaint should be stricken from Petitioners’

Opening Brief. This motion is based on this notice, the

attached declaration of Sayre Weaver, the attached memo-

randum of points and authorities, and the record on

appeal and briefs on file in this matter.

Resp. App. 18

Dated: March __, 2001

RICHARD WINNIE

COUNTY COUNSEL,

COUNTY OF ALAMEDA

SAYRE WEAVER

RICHARDS, WATSON &

GERSHON

A Professional Corporation

By:

Sayre Weaver

Attorneys for Appellees

Mary V. King, Gail

Steele, Wilma Chan,

Keith Carson, Scott

Haggerty, the County of

Alameda, and the

County of Alameda

Board of Supervisors

MEMORANDUM OF POINTS AND AUTHORITIES

Pursuant to Rules 13 and 18 of the California Rules of

Court and People v. Brawley (1969) 1 Cal.8d 277, 294-295

cert. denied (1971) 400 U.S. 993, the County seeks an

order requiring Petitioners to correct their Opening Brief

by removing the material in their Brief which is alleged

only in their Amended Verified Complaint (“Amended

Complaint”) together with all references to the Amended

Complaint on the grounds that the Amended Complaint

was not before the United States District Court when it

entered the Order from which Petitioners have appealed.

This motion seeks to limit Petitioners’ Opening Brief to

evidence before the District Court when it entered the

Resp. App. 19

order from which Petitioners appealed to the Ninth Cir-

cuit.

In the Ninth Circuit, the County also moved to strike

the portions of Appellants-Petitioners’ Excerpts of Record

designating the Amended Complaint as part of the Record

[Excerpts of Record, Tab 16] and portions of Appellants-

Petitioners’ Opening Brief citing to the Amended Complaint.

The Ninth Circuit Court of Appeals never ruled on the

County’s motion to strike. A true and correct copy of the

County’s motion to strike filed in the Ninth Circuit is

attached here as Exhibit “1.” [Declaration of Sayre

Weaver, J 3 and Exhibit “1” thereto]

On September 17, 1999 Plaintiffs Russell Allen

Nordyke and Sallie Ann Nordyke, dba TS Trade Shows

filed their original complaint, naming Alameda County,

the Alameda County Board of Supervisors as a body, and

naming each of the individual board members, and chal-

lenging the Ordinance on First and Fourteenth Amend-

ment grounds, and seeking damages and injunctive relief

and a declaration based upon a state preemption claim. No

other parties appeared as plaintiffs in the original com-

plaint. [Decl. of Sayre Weaver at 94 and Exhibit “2”

thereto (Docket # 1)] On September 30, 1999, Petitioners

moved the District Court for a temporary restraining order

to enjoin the application of the Ordinance. [Decl. of Sayre

Weaver at J 4 and Exhibit “2” thereto (Docket # 12)] On or

about September 28, 1999, the County filed an opposition

to the Petitioners’ motion for a temporary restraining

order. [Decl. of Sayre Weaver at {4 and Exhibit “2”

thereto (Docket # 29)]

On October 28, 1999, the District Court heard argu-

ments on Petitioner’s motion for a temporary restraining

Resp. App. 20

order. On November 3, 1999, the District Court entered its

order denying Petitioners’ motion for a temporary restrain-

ing order. [Decl. of Sayre Weaver at 7 5 and Exhibit “3”

thereto] :

On October 7, 1999, the County filed a motion to

dismiss the original complaint. [Decl. of Sayre Weaver at

q 4 and Exhibit “2” thereto (Docket # 45)] Petitioners did

not file a response to the motion to dismiss, but instead on

November 10, 1999, and after the District Court’s Novem-

ber 3, 1999 denial of Petitioners’ motion for a temporary

restraining order and preliminary injunction, Petitioners

filed an Amended Verified Complaint, adding 12 individual

plaintiffs (which plaintiffs are referred to in Petitioners’

Opening Brief before this Court), some allegations and

exhibits and switching the order of the fourth and fifth

claims. [Decl. of Sayre Weaver at [6 and Exhibit “4”

thereto]

Here, Petitioners filed the Amended Complaint with

the District Court after the District Court entered its order

denying the Petitioners’ motion for a temporary restrain-

ing order and preliminary injunction — the order they

appealed from to the Ninth Circuit. Specifically, Petitioners

filed their Amended Complaint on November 10, 1999 —

twelve days after the hearing on the motion for a temporary

restraining order and preliminary injunction and seven

days after the District Court entered its order denying their

motion. Because the Amended Complaint was not pre-

sented to the District Court and is not properly part of the

record on appeal, this Court cannot consider it. See Braw-

ley 1 Cal.3d 277, 294-295 (rejecting defendant’s request to

augment the record on appeal to include the copies of the

complaint and arrest warrant because “(t]he complaint

and arrest warrant were not before the trial court, and it

Resp. App. 21

is an elementary rule that ordinarily matters not pre-

sented to the trial court and hence not a proper part of the

record on appeal will not be considered on appeal”); People

v. Pearson (1969) 70 Cal.2d 218 (explaining that material

not before the trier of fact is not part of record on appeal

from judgment and thus the court on appeal is not author-

ized to augment the record with material not before the

trier of fact). See also McConnell v. All-Coverage Ins. Exch.

(1964) 229 Cal.App.2d 735, 749 (explaining that the

reviewing court reviews the orders of the trial court on the

“record then before the trial court. If events occur, subse-

quent to the issuance of the orders appealed from, which

render inequitable or improper the enforcement of such

orders, appellant’s remedy is by appropriate motion in the

trial court after the remand to it.”).

Accordingly, the County objects to and seeks an order

requiring Petitioners to strike the material set forth below

from Petitioners’ Opening Brief and file a corrected brief

with this Court or in the alternative that the Court correct

Petitioners’ Opening Brief by interlineation or enter an

order indicating it has disregarded the material set forth

below from Petitioners’ Opening Brief :

Portions of Petitioners’ Grounds for Motion to

Opening Brief contained Strike:

only in Amended Complaint

which the County moves to

strike:

1. Page 3 of Petitioners’ 1. These plaintiffs are

Opening Brief, paragraph 2 identified only in the

beginning with the sentence Amended Verified Com-

on Page 3 of Brief, stating _ plaint [ER, Tab 16] -—a

“Plaintiff/Appellant JESS B. document not before the

GUY is an Attorney at Law, District Court when it

shooting enthusiast and entered its Order from

Resp. App. 22

collector of used and antique which Petitioners have

firearms.” to the end of that appealed. The Amended

paragraph, ending withthe Complaint is not properly

sentence on Page 5 of Brief, part of the record on appeal.

stating “All of the foregoing See Brawley, supra.

plaintiff/appellants are

frequent Exhibitor, Patrons

and Vendors at the TS

TRADE SHOWS held at the

Alameda County Fair-

grounds.”

With reference to the following citations to the

Amended Complaint in support of Petitioner’s Opening

Brief, the facts cited are also set forth in the Original

Complaint [Excerpts of Record, Tab 1] or are otherwise

contained in the record. However, Petitioners’ citation to

the Amended Complaint in support of these facts is im-

proper because the Amended Complaint was not before the

District Court when it entered its Order from which

Petitioners have appealed. Accordingly, the County objects

to and moves to strike the references to the Amended

Complaint as set forth fully below:

References in Petitioners’ Grounds for Motion to

Opening Briefto Amended Strike:

Complaint which the County

moves to strike:

1. Page 5 of Petitioners’ 1. These references are

Opening Brief, first full to the Amended Verified

paragraph as follows: Complaint [ER, Tab 16] —

“([ER, Tab 16, Exhibit B];” a document not before the

“ER, Tab 16, Exhibit A];” District Court when it

“[ER, Tab 16, Exhibit H].” entered its Order from

which Petitioners have

appealed. The Amended

Resp. App. 23

2. Page 5 of Petitioners’

Opening Brief, second full

paragraph as follows:

“[ER, Tab 16, Exhibit [sic]].”

3. Page 6 of Petitioners’

Opening Brief, first full

paragraph as follows:

“[ER, Tab 16, Exhibit E].”

4. Page 6 of Petitioners’

Opening Brief, second full

paragraph as follows:

“[ER, Tab 16, Exhibit F].”

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners should have cited to

the Original Complaint.

2. This reference is to the

Amended Verified Com-

plaint [ER, Tab 16] -a

document not before the

District Court when it

entered its Order from

which Petitioners have

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley supra.

3. This reference is to the

Amended Verified Com-

plaint [ER, Tab 16] -—a

document not before the

District Court when it

entered its Order from

which Petitioners have

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners should have cited to

the Original Complaint. :

4. This reference to the

Amended Verified Com-

plaint [ER, Tab 16] —a

document not before the

District Court when it

entered its Order that

Petitioners have appealed.

Resp. App. 24

5. Pages 6 of Petitioners’

Opening Brief, last full

paragraph as follows:

“(ER, Tab 16, Exhibit G].”

6. Page 8 of Petitioners’

Opening Brief, last full

paragraph as follows: “(ER,

Tab 16, page 2];” “[ER, Tab

16, Exhibit E].”

The Amended Complaint is

not properly part of the

record on appeal. See

Brawley, supra. Petitioners

should have cited to evi-

dence in the Record on the

Amendment of the Ordi-

nance [ER, T13 at 6-11].

5. This reference is to the

Amended Verified Com-

plaint [ER, Tab 16] -—a

document not before the

District Court when it

entered its Order from

which Petitioners have

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners should have cited to

the Original Complaint.

6. These references are

to the Amended Verified

Complaint (ER, Tab 16] —

a document not before the

District Court when it

entered its Order from

which Petitioners have

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners should have cited to

the Original Complaint.

ee ee ee

Resp. App. 25

7. Page 37of Petitioners’

Opening Brief, first full

paragraph as follows:

“[ER, Tab 16, Exhibit E].”

8. Page 38 of Petitioners’

Opening Brief, second full

paragraph as follows:

“(Tab 16, pg. 002, ¥ 5).”

9. Page 39 of Petitioners’

Opening Brief, first para-

graph, as follows:

“IER, Tab 16, Exhibit E];”

“[ER, Tab 16, Exhibit D].”

7. This reference is to the

Amended Verified Com-

plaint [ER, Tab 16] —a

document not before the

District Court when it

entered its Order from

which Petitioners have

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners should have cited to

the Original Complaint.

8. This reference is to the

Amended Verified Com-

plaint [ER, Tab 16] -—a

document not before the

District Court when it

entered its Order from

which Petitioners have

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners also cited to the

Original Complaint at [ER,

Tab 1 at 3, J 10] and should

have cited only to this

evidence in the Original

Complaint.

9. These references are to

the Amended Verified

Complaint [ER, Tab 16] -

a document not before the

District Court when it

entered its Order from

which Petitioners have

Resp. App. 26

10. Page 40 of Petitioners’

Opening Brief, second full

paragraph as follows: “[Tab

16, Exhibit K].”

appealed. The Amended

Complaint is not properly

part of the record on appeal.

See Brawley, supra. Peti-

tioners should have cited to

the Original Complaint.

10. These references are

to the Amended Verified

Complaint [ER, tab 16] -a

document not before the

District Court when it

entered its Order that

Petitioners have appealed.

The Amended Complaint is

not properly part of the

record on appeal. See

Brawley, supra. Petitioners

should have cited to the

Original Complaint.

For the above reasons, the County seeks an order

requiring Petitioners to strike the material set forth below

from Petitioners’ Opening Brief and file a corrected brief

with this Court or in the alternative that the Court correct

Petitioners’ Opening Brief by interlineation or enter an

order indicating it has disregarded the material set forth

above from Petitioners’ Opening Brief.

Resp. App. 27

Dated: March __, 2001

RICHARD WINNIE

COUNTY COUNSEL,

COUNTY OF ALAMEDA

SAYRE WEAVER

RICHARDS, WATSON &

GERSHON

A Professional Corporation

By:

Sayre Weaver

Attorneys for Appellees

Mary V. King, Gail Steele,

Wilma Chan, Keith Carson,

Scott Haggerty, the

County of Alameda, and

the County of Alameda :

Board of Supervisors

Resp. App. 28

No. 99-17551 [DC# CV 99-4389-MJJ]

IN THE

UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

RUSSELL ALLEN NORDYKE; et al.,

Plaintiffs-Appellants,

VS.

MARY V. KING; et al.,

Defendants-Appellees.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

PLAINTIFF/APPELLANTS’

MOTION TO CONDUCT SUPPLEMENTAL

BRIEFING ON CONSTITUTIONAL ISSUES

Donald E.J. Kilmer, Jr.

LAW OFFICES OF DONALD KILMER

1261 Lincoln Avenue, Suite 111

San Jose, California 95125-3030

Vc: 408/998-8489 Fx: 408/998-8487

Counsel for Plaintiff-Appellants

Resp. App. 29

MOTION TO SUBMIT

SUPPLEMENTAL BRIEFING

Plaintiff/Appellants hereby apply to this Court for

permission to file Supplemental Briefs on the Federal

Constitutional issues in the above-entitled action. The

reasons for the request are as follows:

1. In its September 12, 2000 Order certifying a question

to the California Supreme Court, this Court ordered a

stay of these proceedings. Therefore, the parties were

precluded from applying to this Court to conduct sup-

plemental briefing on important post-submission is-

sues that have been raised by events outside the

scope of this litigation.

2. Inits July 26, 2002 Order inviting the parties to file

simultaneous supplemental brief, the court limited

the issues to be address to “the impact of the Califor-

nia Supreme Court’s answer to the question certified

on September 12, 2000.” A fair reading of that order

does not invite the parties to brief any other issues.

3. As noted in Plaintiff/Appellants’ Supplemental Brief,

a wholly new legal issue, with respect to Second

Amendment standing issues, has arisen since sub-

mission of this case to this panel and the California

Supreme Court’s decision. On June 10, 2002, the U.S.

Supreme Court denied certiorari in the case of Emer-

son v. United States, 270 F.3d 203 (5th Cir. 2001);

leaving in place a decision that is somewhat in con-

flict with decisions in this Circuit. Furthermore, in its

brief opposing certiorari before the U.S. Supreme

Court, the Solicitor General and Attorney General,

clarified the United States Government’s position

with respect to Second Amendment standing issues.

Resp. App. 30

Though not raised the parties, the issues is fairly be-

fore this Court based upon the District Court’s Order

Denying Plaintiffs’ Motion for Temporary Restraining

Order and Preliminary Injunction. See: page; 13, line

21 et seq. Whatever Second Amendment rights the

Plaintiff/Appellants might have — when coupled with

the First Amendment issues already before this Court

— could end up being dispositive of the case.

Several cases have been decided by the United States

Supreme Court and the Ninth Circuit Court of Ap-

peals that may have important ramifications on the

Federal Constitutional Issues still pending before this

Court. The following is a partial list of such cases:

A. Watchtower Bible and Tract Society of New

York, Inc., et al., Petitioners vs. Village of

Stratton et al. (June 17, 2002) __—sU.S. __,

122 S. Ct. 2080; 153 L. Ed. 2d 205.

B. Tommy G. Thompson, Secretary of Health

and Human Services, et al., Petitioners vs.

Western States Medical Center et Ai. (April

29, 2002)__—sU.S. ___, 122 S. Ct. 1497; 152

L. Ed. 2d 563.

C. John D. Ashcroft, Attorney General, et all.,

Petitioners vs. the Free Speech Coalition et

al. (April 16, 2002) _—s«~ U.S. ___, 122 S. Ct.

1389; 152 L. Ed. 2d 403.

D. Good News Club, et al. vs. Milford Central

School (June 11, 2001) 533 U.S. 98; 121

S. Ct. 2093; 150 L. Ed. 2d 151.

E. Venetian Casino Resort vs. Clark County, et

al (July 12, 2001) 257 F.3d 937. Certiorari

Denied March 4, 2002, Reported at; 2002

U.S. LEXIS 1402.

Resp. App. 31

F. Gary Edwards vs. City of Coeur D’alene et

al. (August 21, 2001) 262 F.3d 856.

G. Mae Culbertson vs. Oakridge School District,

et al. (August 7, 2001) 258 F.3d 1061.

5. The parties concentrated on the preemption questions

in their principal briefs. In their 51 page, Opening

Brief, Plaintiff/Appellants devoted only 10 pages to

the First Amendment issues. In their 45 page, Brief of

Appellees, the Defendant/Appellees devoted only 12

pages to the First Amendment issues. In their Reply

Brief, Plaintiff/Appellants devoted only 5 pages to the

First Amendment issues. This Court’s certification of

the preemption issues to the California Supreme

Court, makes it readily apparent that this Court and

the litigants were relying heavily on the preemption

issues to resolve the case. Now that First Amendment

issues predominate, it makes sense to order supple-

mental briefing on those issues.

After the reply brief has been filed, no further briefs

are allowed absent court permission. Thus, a party wish-

ing to file a supplemental brief must file a motion with the

court for permission to do so. [See FRAP Rule 28(c)]

Supplemental authority need not announce a depar-

ture from established authority. Any relevant authority

coming to counsel’s attention after the brief is filed or

argument is made may be brought to the court’s attention.

Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 197, fn. 2

(9th Cir. 1989)

It is within this Court’s power to order the parties to

file supplemental briefs on the First Amendment issues

still pending before this Court. If the Court is inclined to

xtesp. App. 32

agree with the Plaintiff/Appellants that further briefing is

warranted, they hereby request an order so stating.

Date: August 19, 2002

Respectfully Submitted,

/s/ Donald Kilmer

Donald E. J. Kilmer, Jr.

Attorney for

Plaintiff/Appellants

Re: Nordyke v. King US. Ninth Circuit Case No. 99-17551

USS. District Court, Case No. C 99 04389

PROOF OF SERVICE

I, Yeaser Ghalib, declare that I am employed in the

City of San Jose, County of Santa Clara, State of Califor-

nia. I am over the age of 18 years and not a party to this

action; my business address is: 1261 Lincoln Avenue, Suite

111; San Jose, California 95125-3030

On August 19, 2002, I served the following documents:

PLAINTIFF/APPELLANTS’

MOTION TO CONDUCT SUPPLEMENTAL

BRIEFING ON CONSTITUTIONAL ISSUES

on the following interested party(s) in this action:

Sayre Weaver, Esq. Richard Winnie, Esq.

RICHARDS WATSON & ALAMEDA COUNTY

GERSHON COUNSEL

Number One Civic Center 1221 Oak Street, Suite 463

Circle Oakland, California 94612-

P.O. Box 1059 4296

Brea California 92822-1059

Resp. App. 33

VIA Federal Express

(XX] By contracting with a commercial carrier for

delivery to the address listed above within three (3)

calendar days from the date this declaration was

executed, in accordance with Federal Rule of Appel-

late Procedure 25(a)(2)(B)(i), (ii). Said documents

were also dispatched for filing with the Clerk of the

Court for delivery by a third party commercial car-

rier pursuant to FRAP 25(a)(2)(B)(i), (ii). This was

done by placing the appropriate number of copies in

a prepaid Federal Express envelope, and placing

them for pickup on before close of business on Au-

gust 19, 2002.

I declare under penalty of perjury that the foregoing is

true and correct and that this declaration was executed on

August 19, 2002, at San Jose, California.

/s/ Yeaser M. Ghalib

Yeaser M. Ghalib

Resp. App. 34

No. 99-17551 [DC# CV 99-4389-MJJ]

IN THE

UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

RUSSELL ALLEN NORDYKE; et al.,

Plaintiffs-Appellants,

vs.

MARY V. KING; et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA MARTIN J. JENKINS,

DISTRICT JUDGE, PRESIDING

PETITION FOR REHEARING EN BANC

AND PANEL REHEARING

ORIGINAL PANEL:

ARTHUR L. ALARCON, DIARMUID F. O’SCANNLAIN

AND RONALD M. GOULD, CIRCUIT JUDGES

Donald E. J. Kilmer, Jr.

LAW OFFICES OF DONALD KILMER

1261 Lincoln Avenue, Suite 111

San Jose, California 95125-3030

Voice: 408/998-8489

Facsimile: 408/998-8487

Counsel for Plaintiff-Appellants

ee ee a ee

Resp. App. 35

TABLE OF CONTENTS

Pablo of Avtar tiie occicsevecscvssecesesessievcsanusenvssvissssernens ii

I. Introduction and Statement of Counsel.......... 1

II. Importance of the Issue...............c:csecceeeeeeeneees 3

III. Ninth Circuit Law Conflicts with Holdings

from the United States Supreme Court, An-

other Circuit and Findings By the United

Staten COMATOWS. «.cccceccsvessesssescsecsescconcsessneenepeese 5

Bi, QR WORT ccceseiccssscccecsiccsssucccnsevseneusseusvensesas 5

B. History of the Amendment Before Miller.. 7

C. United States v. Millet ....cccccsscescsevsceccesssee 10

D. Conflicting Post-Miller Court of Appeals

OBIS .ccinvssecsccceeienianientneniaeeaaaen 11

E. Conflicting Ninth Circuit Decisions.......... 13

F. Inadequacies of Silveira’s Analysis........... 14

IV. Conclusion Re: En Banc Rehearing ................++ 19

V. Petition for Panel Rehearing ................::cceeeeeeee 22

TABLE OF AUTHORITIES

FEDERAL CASES - U.S. Supreme Court

City of Bourne v. Flores; 521 U.S. 507, 524 (1997)........... 15

Florida v. Mellon, 273 U.S. 12, 18 (1927) .........eeeeeeeeeees 15

Houston v. Moore, 18 U.S. 1, 24 (1820)... eee eeseeeeeeees 9

Martin v. Mott, 26 U.S. 19 CLGRT) ..cccosescesssecsesessvecsersescecseves 9

Massachusetts v. Mellon, 262 U.S. 447, 485-486

CRIBB) eceesencveessvcesvccssevsissennseeivennseevionnseeiesseneutenieennannnnn 15

Muscarello v. U.S., 525 U.S. 125, (1998) ..........ceeseeeeeeeees 9

Resp. App. 36

Perpich v. Department of Defense, 496 U.S. 334, 339

CIBOG ccccccovesesseccesciiicesensetecondandoasmaunaadaaaannnnnaae 4,9

Planned Parenthood v. Casey, 505 U.S. 833, 848

(3G) .covececcicscscncosoncsesnnstentanmeiadanadamamnaaaaeneen i)

Presser v. Illinois, 116 U.S. 252 (1886) ................ccccceeeeeeeeee 6

Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897) ... 5, 13

Selective Draft Law Cases, 245 U.S. 366, 383 (1918)......... 9

Six Companies of California v. Joint Highway Dist.

312 US. SOG, BOT CAPERS eccccrseececsesctescceteniadaannieaia 12

South Carolina v. Katzenbach; 383 U.S. 301, 324

(BIDE) accccccccocsscesescesscessuesionssensdianssnaaiaaaananeee 15, 16

U.S. v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990).......... 9

United States v. Cruikshank, 92 U.S. 542 (1876)............... 6

United States v. Miller, 307 U.S. 174 .

(OEP <cvecoccscocceseséettiatiniepumiaatmmunmiiaiaan 6, 7, 10, 11, 12, 14

FEDERAL CASES - of als

Blair v. U.S., 147 F.2d 840, 849 (8th Cir. 1945)............... 13

Cases v. U.S., 131 F.2d 916, 922 (1st Cir. 1942)............... 12

Engblom v. Carey; 677 F.2d 957 (2nd Cir. 1982).............. 19

Fresno Rifle & Pistol Club, Inc. v. Van de Kamp 965

FS TED Cs Ge. BSED cicccccectecudiesnidinmmianmnmas 2,6, 13

Hickman v. Block, 81 F.3d 98 (9th Cir.

TOE sxcccvisccesiccstustiotiunitbiasioainaamme 1, 2, 6, 14, 15, 18, 19

Marchese v. California, 545 F.2d 645, 646 (9th Cir.

RFE? ccccectsccsiedibeiascetatsieiieidindiaaisiadsaananean een 12, 13

Nordyke v. King, 229 F.3d 1266, 1268 (9th Cir. 2001).......... 22

Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003).... 3, 4, 5, 6, 20

Resp. App. 37

San Diego County Gun Rights Comm. v. Reno, 98

sb Te 8 ee 15

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.

Eee omen oe 2, 3, 6, 14, 15, 16, 17, 19

United States v. Breier, 827 F.2d 1366 (9th Cir.

SEIEIP ..cccccccsuaveversdcevetnnccindeetensadetnimnneeresiennnennteiganeerenion 12

United States v. Emerson, 270 F.3d 203 (5th Cir.

| AS are eseicemeerenenerre 2, 5, 6, 12, 14, 16, 17, 18

United States v. Gomez, 92 F.3d 770, 774 n. 7 (9th

he SED cn ccecssscucstiinnssieavedonicenseieddinntaneniptes aad call 12, 15

United States v. Hale, 978 F.2d 1016, 1021 (8th Cir.

SURED... covcocscussecoccnsebeonssunteloeednnnnngaspooesoosnvevssosserecoqosoosons 12

United States v. Hancock, 231 F.3d 557 (9th Cir.

OT ____...... cssunepednesesdnenussvedbevennsvesensenseneosonmpeosoueseroossness 14

United States v. Hinostroza, 297 F.3d 924, 927 (9th

Chee TE... ncosscecesssccsessostecsnenesbucnentuesenevsonegssonmesenenes 14

U.S. v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).......... 12

United States v. Mack, 164 F.3d 467 (9th Cir. 1999)........ 14

U.S. v. Toner, 728 F.2d 115, 129 (2nd Cir. 1984) ............. 12

United States v. Warin, 530 F.2d 103, 106 (6th Cir.

SATII ... .cooccccncecsnscvbcencenecscuedenscosennsesssonsennooseudysscsevocsonionens 12

STATE CASES

Nordyke v. King, 27 Cal. 4th 875, 882 (2002).........::+:+00+ 22

FEDERAL STATUTES

Firearm Owners’ Protection Act of 1986, Pub. L. No.

99-308, 100 Stat. 449..........ccccccrcrrsesscrrrrseesessecesssesenees 18

Resp. App. 38

OTHER AUTHORITIES

American Constitutional Law, Vol 1, 3rd Edition

(SOGE) Wey Leteremes BE. TRIB ..000cccvcccccscccecccsesecescescccsesesese 7

Congress Interprets the Second Amendment:

Declarations by a Co-equal Branch on the Indi-

vidual Right to Keep and Bear Arms by Stephen

P. Halbrook; 62 Tenn. L. Rev. (1995)............cc.ccccceeeeeees 18

Gun Control and the Constitution, Vol 1, (NY

Garland, 1993) By Robert Cottrol .....................::::ceeee 11

Handgun Prohibition And The Original Meaning of

The Second Amendment By Don B. Kates, Jr.; 82

8 5

No State Shall Abridge: The Fourteenth Amend-

ment and the Bill of Rights, by Michael K. Curtis

Cree vecsinceccsncssmepsiniteliaapndniaidininiagnibieindannaabiear aati 13

On Misreading John Bingham and the Fourteenth

Amendment, by Richard L. Aynes; 103 YALE L.

ie a es Se ee adnctsisvicnnsanssnnoneneiienmblaniaeaitebatieen 14

Origins of the Bill of Rights, by Leonard W. Levy

Gea scneshibscunpilesticdiainientiiataptaddaiandueeipanaieamaaiseamebeiatainniad 7

Symposium: “The Law of The Land”: Tennessee

Constitutional Law: The Right to Keep And Bear

Arms Under The Tennessee Constitution: a Case

Study in Civic Republican Thought by Glenn

Harlan Reynolds; 61 TENN. L. REV. 647, 661............. 11

The Bill of Rights and the 14th Amendment, by

Akhil Amar 101 YALE L. J. 1193, 1205-11, 1261-

iy ETE scaicnsinecninatnnnianstansiocnvieeidbesedamemnaaonmnnnuennieN 14

The Bill of Rights As a Constitution, by Akhil Amar

SI Ue Hits Ga Bete GSD vdecnersseinccesisesenesronesenmmtenseienin 7

The Embarrassing Second Amendment, by Sanford

Levinson 99 YALE L. J. 637 (1989) ...........ccceeeeeeeeeee wm

a a eT »

Resp. App. 39

The Second Amendment and the Personal Right to

Arms, by William Van Alstyne 43 DUKE L. J.

I, Oi, Be IED eccieeiciccucvovnteseenencitnwetecoonssansncessves 7

The Second Amendment in the Nineteenth Century

by David Kopel; 1998 Brig Young L. Rev. 1359

EI ncntscdanasunavessiicahllaeeannteddinenineasniorsniavenineinemessesnten’ 8

The Supreme Court’s Thirty-Four Other Gun

Cases: What the Supreme Court Has Said About

the Second Amendment by David Kopel; 18 St.

Louis University Public Law Review 99 (1999).............. 9

I. INTRODUCTION AND STATEMENT OF COUNSEL

Plaintiff-Appellants hereby seek rehearing en banc of

the February 19, 2003 Panel decision (Alarcén, A.,

O’Scannlain, D. and Gould, R.) concerning an issue of

national significance arising under the Second Amend-

ment to the United States Constitution. The Panel held

that it was foreclosed from reaching the merits of Plaintiff-

Appellant’s challenge to a local ordinance based upon this

Circuit’s holding in Hickman v. Block, 81 7.3d 98 (9th Cir.

1996) that individuals lack standing to seek any protec-

tions under the Second Amendment.

Plaintiff-Appellants contend that a rehearing by the

full court is necessary because the issues raised are of

exceptional importance. For example: Judge Gould found

that the controversy over the individual rights interpreta-

tion of the Second Amendment implicates issues of na-

tional security and preservation of the republic. With

respect to the facts presented by this case — gun shows are

events that take place throughout the rest of the country.

Resp. App. 40

Furthermore, gun show legislation is currently pend-

ing in the United States Congress.’ A further illumination

of the constitutional boundaries of the “right to keep and

bear arms” by the judiciary can only add substance to the

policy considerations that will be addressed by executive

and legislative branches of the federal government.

Plaintiff-Appellants would also note that current

Ninth Circuit law, as set forth in Hickman v. Block, supra;

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.); and Fresno

Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723

(9th Cir. 1992) directly conflicts with an opinion out of the

Fifth Circuit Court of Appeals: United States v. Emerson,

270 F.3d 203 (5th Cir. 2001). We also assert that current

Ninth Circuit law in this area conflicts with broad princi-

ples articulated by the U.S. Supreme Court.

II. IMPORTANCE OF THE ISSUE

The question Plaintiff-Appellants raise for en banc

review is whether the Second Amendment guarantees an

individual right. We contend that every law abiding,

responsible adult has the right to acquire and possess

ordinary small arms. That the question is one of major

importance for the entire nation should be obvious.

In his concurring opinion Judge Ronald M. Gould

found that the individual rights version of: “The Second

Amendment serves at least the following two key purposes:

(1) to protect against external threats of invasion; and (2) to

guard against the internal threat our republic could

* McCain-Lieberman Gun Show Bill — SB 890.

Resp. App. 41

degenerate to tyranny.” Nordyke v. King, 319 F.3d 1185

(9th Cir. 2003).

Judge Gould described in practical terms how the individ-

ual rights doctrine could fulfill those purposes. He also noted

that Silveira, supra failed to adequately describe how the

state’s rights theory could accomplish even the limited constitu-

tional objectives, set forth in the Silveria opinion, of providing a

check and/or balance to a standing federal army.

The Silveira majority takes the position that

the Framers’ concerns to check the possibility of

a Federal government tyranny are sufficiently

answered by reading the Second Amendment

merely to ensure that the states could not be

barred from funding state-organized militia.

Silveira, 312 F.3d at 1085. I disagree. The Sec-

ond Amendment cannot properly be interpreted

to entrust the freedom of the people to the prem-

ise that state governments would arm a self-

reliant people and protect the people against a

federal tyranny. The practical concept of militia

contemplates an armed citizenry capable of ris-

ing up, with what arms they hold or can find, to

defeat, resist or at minimum delay an invader

until more organized power can be marshalled.

The likelihood of broad resistance from an armed

citizenry is a deterrent to any would be invader.

Equally important, the practical concept of mili-

tia, embracing an armed citizenry, stands to de-

ter risk of government degradation to tyranny.

This concept is weakened by Silveira’s premise

that the citizens could rely on their states to be

an arsenal and repository for arms, and other-

wise have no right.

Judge Gould’s Concurring Opinion

Nordyke v. King, supra

Resp. App. 42

The relationship between the federal government, and

the states regarding military issues has previously been

found to be of manifest importance’. Plaintiff-Appellants’

case raises similar issues regarding the relationship

among the federal government, the states and individu-

als, and is therefore also of manifest importance.

Ill. NINTH CIRCUIT LAW CONFLICTS WITH

HOLDINGS FROM THE UNITED STATES

SUPREME COURT, ANOTHER CIRCUIT AND

FINDINGS BY THE UNITED STATES CON-

GRESS

A. Overview

Plaintiff-Appellants want to reiterate a point made

before the Nordyke panel, we are not seeking wholesale

invalidation of all state and local laws regulating firearms.

An individual rights interpretation of the Second Amend-

ment would not extend to criminals, children, the mentally

unbalanced and persons subject to domestic violence

restraining orders.’ Arguably many of the gun laws in this

state would not violate the Amendment per se.* [See, e.g.,

Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897)]

Ninth Circuit Second Amendment Jurisprudence — which is

based upon a “collective and/or states’ rights” theory — conflicts

with another Circuit’s “individual rights” interpretation,

* Perpich v. Department of Defense, 496 U.S. 334, 339 (1990).

* United States v. Emerson, 270 F.2d 203, 261 (5th Cir. 2001)

* See, e.g., Don B. Kates, “Handgun Prohibition and the Original

Meaning of the Second Amendment”, 82 MICH. L. REV. 203, 258-266

(1983) detailing gun controls that are valid under the individual right

view of the Second Amendment.

Resp. App. 43

and with Supreme Court opinions. As Nordyke states: “We

recognize that our sister circuit engaged in a very thoughtful

and extensive review of both the text and historical record

surrounding the enactment of the Second Amendment. And if

we were writing on a blank slate, we may be inclined to follow

the approach of the Fifth Circuit in Emerson.” Nordyke v.

King, supra. And as Judge Gould states in the concurrence:

I join the court’s opinion, and write to elabo-

rate that Hickman v. Block, 81 F.3d 98 (9th Cir.

1996), was wrongly decided, that the remarks in

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir.

2002), about the “collective rights” theory of the

Second Amendment are not persuasive, and that

we would be better advised to embrace an “indi-

vidual rights” view of the Second Amendment, as

was adopted by the Fifth Circuit in United States

v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001),

consistent with United States v. Miller, 307 US.

174 (1939). We should recognize that individual

citizens have a right to keep and bear arms, sub-

ject to reasonable restriction by the government.

We should also revisit whether the requirements

of the Second Amendment are incorporated into

the Due Process Clause of the Fourteenth

Amendment. [footnotes omitted]

The rest of this brief is — of necessity — « critique of

collective rights model set forth in the Hickman, supra and

Silveira, supra. On the issue of 14th Amendment Due

Process incorporation, even the Silveira panel concluded

notwithstanding the standing issues, that the refusal to

incorporate various provisions of the Bill of Rights though

the 14th Amendment Due Process Clause, based upon the

holdings of United States v. Cruikshank, 92 U.S. 542

Resp. App. 44

(1876) and Presser v. Illinois, 116 U.S. 252 (1886) is based

upon a now discredited view. Therefore, if en banc review

is granted, it will also be necessary to revisit this Circuit’s

holding in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp,

965 F.2d 723 (9th Cir. 1992).

B. History of the Amendment before Miller®

William Van Alstyne, a major figure in modern

constitutional law, has noted:

In recent years it has been suggested that the Sec-

ond Amendment protects the ‘collective right’ of

states to maintain militias, while it does not pro-

tect the right of ‘the people’ to keep and bear arms.

If anyone entertained [that concept] in the period

during which the Constitution and Bill of Rights

were debated and ratified, it remains one of the

most closely guarded secrets of the eighteenth cen-

tury, for no known writing surviving from the pe-

riod between 1787 and 1791 states [that theory].°

As Prof. Van Alstyne also notes, the Amendment has "gener-

ated almost no useful body of [case] law.” Every major figure

in American constitutional law who has addressed the

Amendment declares it an individual right.’ Are they all

wrong?

* United States v. Miller, 307 U.S. 174 (1939).

* William Van Alstyne, “The Second Amendment and the Personal

Right to Arms”, 43 DUKE L. J. 1236, 1243, n. 19 (1994) (emphasis added)

quoting from Stephen P. Halbrook, “THAT EVERY MAN BE ARMED”:

THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984).

* Besides Van Alstyne supra, and Justice Story, infra, see; Thomas

Cooley, The General Principles of Constitutional Law in the United States

of America 298 (3d ed. 1898); Sanford Levinson, “The Embarrassing

(Continued on following page) -

Resp. App. 45

The very concept of the Amendment as something

other than an individual right was unknown to the Foun-

ders and the following generations. Beyond the absence of

the “collective rights” from the period 1787-91, the theory

was equally unknown in the 19th Century.° Typical of 19th

Century explanations of the Amendment’s purposes is Mr.

Justice Story’s: “One of the ordinary modes, by which

tyrants accomplish their purpose without resistance is, by

disarming the people and making it an offense to keep

arms.” Surprisingly, neither Silveira nor Hickman, nor

any other argument for the states’ right position even

mentions Justice Story’s, or the other, 19th Century

explanations of the Second Amendment.

Second Amendment”, 99 YALE L. J. 637 (1989); Akhil Amar, The Bill of

Rights As a Constitution, 100 Yale L. J. 1131, 1166 (1991); Leonard W.

Levy, ORIGINS OF THE BILL OF RIGHTS 134-35 (1999); Laurence H.

Tribe, Vol. 1, 3rd Ed., AMERICAN CONSTITUTIONAL LAW 901-902,

n. 221 (2000).

* David Kopel, “The Second Amendment in the Nineteenth

Century,” 1998 BRIG. YOUNG L. REV. 1359.

* J. Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF

THE UNITED STATES 264 (1840; republished, 1893) cited by Prof. Kopel.

supra at p. 1393 of 1998 BRIG. YOUNG L. REV. Other 19th Century

constitutional exegesis he cites include: P. 1377, St. George Tucker (1803):

the Second Amendment enshrines “The right of self defense [which] is the

first law of nature.”; Pp. 1385-88, William Rawle (1825): the right to arms

does not protect the carrying of arms “for an unlawful purpose”; P. 1437

Lysander Spooner (1850): “This right to keep and bear arms implies the

right to use them ... as, for example, in defense of life, liberty, chastity,

&c....”; Pp. 1402 and 1469, Francis Lieber (1853) and Joel Tiffany (i868)

both: analogizing the Second Amendment to the Third; P.. 1470, Timothy

Farrar (1867): analogizing “The right of every person ... ‘to keep and bear

arms” to the rights of trial by jury, habeas corpus, due process and “divers

other [rights] recognized by and held under the Constitution”; P. 1476,

John Norton Pomeroy (1870): The clause guaranteeing “The right of the

people to keep and bear arms ... is analogous to the [clause] securing

freedom of speech and of the press.”

Resp. App. 46

Though both the Supreme Court’s, and the Founding

Fathers’, references to the Amendment are very brief, they all

portray it as an individual right, usually lumping it together

with the rest of the Bill of Rights without suggesting it is any

less individual.” The Supreme Court, interpreting the phrase

“right of the people” in the Fourth Amendment suggested that

as used there and in the First and Second Amendments, it

denotes rights of individuals.” In another case construing a

statute pushing those who “carry” arms in connection with

drug crimes, both the majority and dissenting opinions

equated “carry” arms to the phrase “bear arms”.”

Last, but scarcely least, the idea of the Amendment

guaranteeing state power over the militia flies in the face

of an unbroken line of federal case law dating back to

1820. Those cases hold that the states have no power over

the militia vis-a-vis federal control.”

** As to the Founders’ references to the right to arms, see Original

Meaning, supra, 82 MICH. L. REV. 223-4, 235 (quoting James Madison, Fisher

Ames, Albert Gallatin and James Monroe) As to Supreme Court references see,

e.g., Planned Parenthood v. Casey, 505 US. 833, 848 (1992) and other cases

there cited (using Second Amendment along with First and Fourth Amend-

ments to illustrate personal rights that the Bill of Rights protects against

government) and the cases discussed in David B. Kopel, “The Supreme Court’s

Thirty-Four Other Gun Cases: What the Supreme Court Has Said About the

Second Amendment”, 18 ST. LOUIS U. PUBLIC L. REV. 99 (1999).

" U.S. v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990).

*% Muscarello v. U.S., 525 U.S. 125, (1998).

** Inter alia, Houston v. Moore, 18 U.S. 1, 24 (1820) (federal militia

legislation preempts state), Martin v. Mott, 25 U.S. 19 (1827) (president’s

power to call militia from state control into federal service), Selective

Draft Law Cases, 245 U.S. 366, 383 (1918) (Congress has authority to

abolish states militia by bodily incorperating them into federal army),

Perpich v. Department of Defense, 49€ U.S. 334 (1990) (state militias

may be called into federal service over state objection because federal

authority over the militia is paramount).

Resp. App. 47

C. United States v. Miller

The only Supreme Court case to consider the Second

Amendment at any length was United States v. Miller,

supra which held an indictment should not have been

dismissed on the blanket theory that the National Fire-

arms Act violated the Amendment ipso facto. Neither of

the defendants were, or claimed to be, members of the

militia. Nor did the Court suggest they needed to allege

such a status to challenge the statute under the Amend-

ment. Instead, the Miller Court held that the validity of a

law regulating sawed-off shotguns depends on whether

they are the kind of firearms the Second Amendment

protects individuals in possessing.

Dealing with the challenge on its merits, the Court

held the Amendment guarantees possession of military-

type weapons only. This is based on the Amendment's

reference to a militia (which the Court expressly recog-

nized included virtually the whole male population “bear-

ing arms supplied by themselves”). Having fixed on this

military-weapon standard, the Court reversed the dis-

missal of the indictment because (for obvious reasons)

there had been no trial to establish whether a sawed off

shotgun is a military weapon, and the Court was not

prepared to take judicial notice of that fact.”

4 307 US. at 179: “The signification attributed to the term ‘militia’

appears from the debates in the Convention, the history and legislation

of the colonies and the states, and the writings of approved commenta-

tors . . . [:] all males physically capable of acting in concert for the

common defense.... [OJrdinarily wen called for service these men

were expected to appear bearing arms supplied by themselves and of the

kind in common use at the time.” Emphasis added.

’* 307 U.S. at 178.

Resp. App. 48

Miller reached this basically individual right result

even though the individual right view was not argued to

the Court. The matter went up from the trial court on the

government’s appeal and neither defendant appeared

above. The only brief filed was the government’s. Even

more significant, the states’ right-collective right view was

actually presented to the Court in the brief for the United

States’ — yet the Court did not even address that argu-

ment, rather the Court cited 19th Century cases constru-

ing the right to arms provisions as an individual right.”

D. Conflicting Post-Miller Court of Appeals Cases

The states’ rights theory appeared in a First Circuit

case which only “followed” Miller chronologically but

expressly refused to follow it doctrinally, asserting that

Miller had not meant to establish a standard for future

cases. Cases v. U.S., 131 F.2d 916, 922 (1st Cir.1942).

Cases set the pattern for future circuit court cases,

that adopted the states’ right theory without any discus-

sion of the historical, textual or legal points we raise

herein. What followed was a series of terse circuit court

cases that purport to follow a Miller “standard” without

recognizing that they are instead following Cases which

** It “argued that the [Second Amendment] right was a collective

one that [only] protected the people when carrying arms as members of

the state militia.” Vol. 1, R. Cottrol, GUN CONTROL AND THE

CONSTITUTION, xxvii (Introduction) (NY Garland, 1993).

307 U.S. at 179. For discussion of the cited cases under the

unquestionably individual right in the Tennessee Constitution and

their relation to Miller and the Second Amendment, see Glenn H.

Reynolds, “The Right to Keep and Bear Arms Under the Tennessee

Constitution,” 61 TENN. L. REV. 647, 661 et seq. (1994).

Resp. App. 49

expressly departed from Miller. Some of these cases

involve — and state nothing more than — the unquestiona-

bly correct conclusion that felons have no rights under the

Second Amendment.” On several occasions, individual

judges have expressed disagreement with the states’ right

view.” |

The United States v. Emerson, 270 F.3d 203 (5th Cir.

2001) held that the Amendment protects an individual

right, devoting more reasoning and analysis to the matter

than all the prior circuit court opinions combined. (One

judge dissented, on the erroneous basis that Emerson’s

Second Amendment discussion is dicta.”)

E. Conflicting Ninth Circuit Decisions

Apparently the first” Ninth Circuit case to consider

the issue was Marchese v. California, 545 F.2d 645, 646

® See eg., U.S. v. Toner, 728 F. 2d 115, 129 (2nd Cir. 1984),

Marchese v. California, 545 F. 2d 645, 646 (9th €ir. 1976), United

States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976), U.S. v. Johnson, 497

F. 2d 548, 550 (4th Cir. 1974)

United States v. Breier, 827 F.2d 1366 (9th Cir. 1987) (Noonan, J.

dissenting from a denial or rehearing en banc), United States v. Hale,

978 F.2d 1016, 1021 (8th Cir. 1992) (Beam, J. concurring), United

States v. Gomez, 92 F.3d 770, 774, n. 7 (9th Cir. 1996) (Kozinski, J.).

» Even if it is not strictly necessary to deciding the case, language

in an opinion that is clearly intended to dispose of a contention raised

by a party is holding, not dictum. Six Companies of California v. Joint

Highway Dist. (1941) 311 U.S. 180, 187, Blair v. U.S., 147 F.2d 840, 849

(8th Cir. 1945).

1 Although it should be noted that Robertson v. Baldwin, supra

arose out of an appeal from the Northern District of California. This is

significant because Robertson is a U.S. Supreme Court case that

implicitly recognized the “right to keep and bears arms” as an individ-

ual right. :

Resp. App. 50

(9th Cir. 1976) which rejected the individual right view in

a single sentence citing some of the other terse, circuit

court cases. The next case was Fresno Rifle & Pistol Ass’n.

v. VanDeKemp, 965 F.2d 723 (9th Cir. 1992). The panel in

that case acknowledged the individual vs. states’ right

debate as an open question, but refused to decide the

issue. [Fresno, at 729] Instead the Fresno panel, disposed

of the case based on 19th Century Supreme Court case law

holding that the Second Amendment restrains only the

federal government, not the states. [Fresno, at 729 et seq.]

But this was clearly erroneous because the opinion recog-

nized the 19th Century case law” addressed a different

(though analogous) point.”

Then Hickman v. Block, 81 F.3d 98, 102 (9th Cir.

1996) concluded that individuals do not even have stand-

ing to raise a Second Amendment claim because that

Amendment “guarantees [only] the right of the states

to maintain [an] armed militia. .. .” It is ironic that

* Those cases held that in and of themselves none of the Bill of

Rights apply against the states — a point that is still good law today.

What the opinion recognizes those cases did not address is 14th

Amendment incorporation against the states (965 F.2d 730-31). There

were 19th Century cases rejecting that theory as well, but they are, of

course, no longer good law.

** Compare Fresno at p. 730 to Michael K. Curtis, NO STATE

SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE

BILL OF RIGHTS 104 (Duke, 1986) “the rights that Republicans in the

Thirty-ninth Congress relied on as absolute rights of the citizens of the

United States were the right/s] to freedom of speech . .. due process...

and to bear arms.” See pp. 52, 53, 56, 72, 88, 140-1 and 164. See also

Van Alstyne, supra, 43 DUKE L. J. 1251-53 (1994), Richard L. Aynes,

“On Misreading John Bingham and the Fourteenth Amendment”, 103

YALE L. J. 57, 84, 98 (1993); Akhil Reed Amar, “The Bill of Rights and

the Fourteenth Amendment”, 101 YALE L. J. 1193, 1205-11, 1261-2

(1992).

Resp. App. 51

Hickman sees this conclusion as deriving from U.S. v.

Miller, and following cases, since it exactly reverses what

Miller actually did as to standing. Recall that the Miller

Court entertained a Second Amendment challenge from

two men who made no claim to membership in the militia.

In the wake of the 5th Circuit’s Emerson, supra

decision, a panel of this Court sought to shore up the

states’ rights position in Silveira v. Lockyer, 312 F.3d 1052

(9th Cir. 2002), discussed infra. This position was dis-

avowed by the Nordyke panel.

F. Inadequacies of Silveira’s Analysis

Current Circuit opinions refuse to consider Second

Amendment issues on the basis that the Circuit position is

fixed by Hickman.” We respectfully submit that rehearing

en banc is required to either: a) repudiate the states’ right

view, or b) establish an intellectually valid basis for it by

addressing the following problems Silveria fails to ade-

quately deal with (or ducks entirely):

1. The mechanics of the standing issue, un-

stated in Hickman, and vaguely expressed in

Silveira, necessarily implies that any litiga-

tion brought to remedy a breach of the right

“to keep and bear arms” can only be ad-

dressed through a suit brought by the states

on behalf of “the people.” In effect, the states

must assume the role of parens pairiae on

* See, e.g., United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir.

2002); United States v. Hancock, 231 F.3d 557 (9th Cir. 2000); United

States v. Mack, 164 F.3d 467 (9th Cir. 1999); San Diego County Gun

Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996); and United Stats v.

Gomez, 92 F.3d 770 (9th Cir. 1996) [contra: fn. 7)

Resp. App. 52

behalf their citizens. This is contrary to doc-

trines articulated by the U.S. Supreme

Court. “The first eight Amendments to the

Constitution set forth self-executing prohibi-

tions on governmental action, and this Court

has had primary authority to interpret those

Prohibitions.” [City of Boerne v. Flores; 521

U.S. 507, 524 (1997)] Construing the “self-

executing” provisions of the 15th Amendment

in South Carolina v. Katzenbach; 383 U.S.

301, 324 (1966), the U.S. Supreme Court

stated: “Nor does a State have standing as the

parent of its citizens to invoke these constitu-

tional provisions against the Federal Gov-

ernment, the ultimate parens patriae of every

American citizen. Massachusetts v. Mellon,

262 U.S. 447, 485-486; Florida v. Mellon, 273

U.S. 12, 18.”

2. Neither Silveira, nor any other decision ad-

vancing the states’ right theory mentions —

much less reconciles — the Supreme Court’s

holdings that states have no power over the

militia as against federal control. (See fn. 13

supra.)

3. Silveira offers no reconciliation of the

Amendment’s use of the term of art “right of

the people” used in several other parts of the

Bill of Rights. Are we to believe that the |

First Congress used “right of the people” to

mean a right of individuals in the First

Amendment, but 16 words later in the Sec-

ond it means a right of the states, but 26

words later in the Fourth it means a right of

individuals?

4. Silveira offers no answer to Emerson’s point

that, “As used throughout the Constitution,

Resp. App. 53

the people have ‘powers’ or ‘rights,’ but fed-

eral and state governments have ‘powers’ or

‘authority, never ‘rights.’” U.S. v. Emerson,

270 F.3d at 227.

5. Then there are the Ninth and Tenth

Amendments which specifically provide il-

lumination with respect to people’s rights

and powers and the states’ mere powers.”

6. Silveira gratuitously assumes an inconsis-

tency between the Amendment’s intent of

guaranteeing a right to people and of pro-

tecting the militia. But, as Emerson states,

the “‘amendment’s wording, so opaque to us,

made perfect sense to the Framers: believing

that a militia (composed of the entire people

possessed of their individually owned arms)

was necessary for the protection of a free

state, they guaranteed the people’s right to

possess those arms.’” Emerson, 270 F.3d at

235.

7. In assuming the Amendment has no individ-

ual right content, Silveira ignores the phi-

losophical heritage of the Founders who took

from Hobbes, Locke, Montesquieu, Black-

stone, etc., the beliefs that: a) the right to

arms for defense of self and family is a fun-

damental human right derived from the sa-

cred right of self-defense; b) that the

governed had the right to alter or abolish

° Cf Katzenbach, supra [at p. 323]: “The word “person” in the

context of the Due Process Clause of the Fifth Amendment cannot, by any

reasonable mode of interpretation, be expanded to encompass the States

of the Union, and to our knowledge this has never been done by any

court.” {Another instance of distinguishing between people/persons and

the states.]

Resp. App. 54

oppressive forms of government; and c) that

sovereignty, with all the implications that

term connotes, resides in “the people.”

8. With respect to Silveria’s historical/textual

analysis, that opinion fails to address Madi-

son’s initial proposal to interlineate the Bill

of Rights into the sections of the Constitu-

tion in which they were relevant. Madison

intended to insert the First, Second, Fourth

and other Amendments that guarantee indi-

vidual rights into Article I, §9 and Article

III, § 2 which contains the original Constitu-

tion’s few individual rights guarantees (jury

trial; ban on ex post facto laws, etc.); but

Madison’s scheme called for the Tenth

Amendment, dealing with state powers, to

go into a new and entirely different Article

VII. See: Emerson, supra, 270 F.3d at 246,

fn. 54.

9. The Hickman and Silveira decisions are also

in conflict with the legislative and executive

branch interpretations of the “right to keep

and bear arms.” Congress has declared the

Second Amendment to be a right of citizen-

ship.” See, e.g., Firearm Owners’ Protection

Act of 1986, Pub. L. No. 99-308, 100 Stat.

449 (May 19, 1986). Based upon the Solicitor

General’s brief urging the Supreme Court to

deny certiorari in the Emerson case, the

Amendment: Declarations by A Co-Equal Branch on the Individual

Right to Keep and Bear Arms,” 62 TENN. L. REV. 597 (1995).

Resp. App. 55

executive branch of our federal government

is in accord.”

IV. CONCLUSION RE: EN BANC REHEARING

It may be inevitable that the Second Amendment

Jurisprudence will end up being addressed by the U.S.

Supreme Court. If that happens, and the decisions of the

_Ninth Circuit are to be reviewed by that body, then the

legal scholarship that is to carry the prestige of this Court

should be vetted by the entire panel so that only a bal-

anced and thorough rendering of the law from this Circuit

is subjected to Supreme Court analysis.

Hickman v. Block, supra was a fluke” that has worked

to the advantage of those who would seek to perpetuate a

binary approach to Second Amendment issues. Silveria v.

Lockyer, supra seeks to perpetuate an error that will

prevent any further illumination of this important topic by

foreclosing any litigation regarding the Second Amend-

ment. The Second Amendment will then become a vestig-

ial Amendment, not due to any lack of cases and/or

controversies, like the Third Amendment”, but because

the Courts have chosen to close their doors on this issue

and refuse to aid the executive and legislative branches in

” A request for judicial notice of these official documents was

granted by the Nordyke panel. The Solicitor General’s brief is available

at: http:/ /www.usdoj.gou/osg/.

* Fluke, n. an accidental advantage; stroke of good luck; an

accidentally successful stroke as in billiards. Webster’s New Universal

Unabridged Dictionary (1994)

Although see: Engblom v. Carey; 677 F.2d 957 (2nd Cir. 1982) for

modern decision finding the Third Amendment incorporated as against

state action through the 14th Amendment Due Process Clause and an

individual right vindicated by this otherwise dormant amendment.

Resp. App. 56

deciphering one of the most important issues facing our

nation. ~

As Judge Gould stated in his concurring opinion in

Nordyke v. King:

We would make progress if the Supreme

Court were to establish a doctrine of an individ-

ual Second Amendment right subject to reason-

able government regulation. The decisional chips

would thereafter fall where they may on the ba-

sis of particular cases and the delicate balance of

their precise facts, aided by the Complementary .

efforts of lawyers, scholars and judges.n10 The

law would best put aside extreme positions and

adopt an assessment of reasonableness of gun

regulation, for this would place us on the right

track.nl1

* The law develops through interdependent actions of

academics advancing theories, advocates championing them

in litigation, and Judges making decisions that clarify doc-

trine. The process is ongoing, for after decisions, academics

will critique and offer suggested improvements, advocates

will bring cases arguing what Judges said as refined by

academic feedback, and more refined decisions result from

this process. See Hon. Wade H. McCree, Jr., The Annual

John Randolph Tucker Lecture, Partners in a Process: The

Academy and the Courts, 37 Wash. & Lee. L. Rev. 811, 1041

(1981).

” In my view it is an error, though understandable one,

to view the Second Amendment exclusively or primarily

with the issue in mind of whether it constrains gun control.

That controversial issue, as important as it may be, can be a

distorting lens through which to view the Amendment if it

clouds judgment and prevents understanding of the basic

purposes of the Second Amendment. Instead, the Second

Amendment should be considered in light of its core pur-

poses of protecting the nation’s safety from external threat

or internal tyranny. However, recognition of individual right

Resp. App. 57

in the Second Amendment, to protect national security, is

not inconsistent with reasonable regulation, which may be

permissible under several theories: (1) all weapons are not

“arms” within the meaning of the Second Amendment; (2)

“arms” protected may be limited to those consistent with use

by an organized military force, as suggested in Miller; and

(3) important government interests may justify reasonable

regulation.

Plaintiff-Appellants respectfully request that the

Ninth Circuit — sitting en banc — take up the Second

Amendment and give it a full hearing before this august

body.

V. PETITION FOR PANEL REHEARING

Plaintiff-Appellants respectfully submit that four (4)

factual issues were overlooked by the Panel with respect to

the First Amendment issues.

1. “The Ordinance would forbid the presence of

firearms at gun shows, such as Nordyke’s,

held at the Fairgrounds. Practically, the Or-

dinance makes it unlikely that a gun show

could profitably be held there.” Nordyke v.

King, 229 F.3d 1266, 1268. (Certification

Order)

2. “[T]he effect on the Nordykes of the Ordi-

nance banning guns on county property is to

make gun shows on such property virtually

impossible.” Nordyke v. King, 27 Cal. 4th

875, 882. (California Supreme Court Opin-

ion)

3. The statistical analysis of, and declarations

by vendors, exhibitors and patrons of guns

Resp. App. 58

shows stating the reasons for attending

guns shows. [ER, Vol. I, Tabs 2 & 5]

4. The uncontroverted testimony — via declara-

tion — of the Nordykes stating that it is im-

possible to hold a gun show without guns

present. [ER, Vol. I, Tabs 3 & 4]

Footnote 3 in this Panel’s decision noted that its

holding does not foreclose a future “as applied” challenge

to the Ordinance. Plaintiff

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